THE STATE OF NEW HAMPSHIRE

SUPREME COURT OF NEW HAMPSHIRE

 

O R D E R

 

R-2003-0001, In re Proposed Amendments to Supreme Court Rules

On January 22, 2003, the court announced its intention to expand the appellate review process, increasing the number of appeals from trial courts that are accepted by the court for review. In order to implement the new appellate review process, the court is considering the adoption of amendments to Supreme Court Rules 3, 5, 7, 7-A, 13, 15, 16, 17, 18, 21, and 25. The proposed amendments are set forth in Appendices A through K. In addition, a proposed new non-discretionary notice of appeal form to be used to file Rule 7 non-discretionary appeals is set forth in Appendix L, and an amended notice of appeal form to be used to file other Rule 7 appeals is set forth in Appendix M.

On or before May 30, 2003, members of the bench, bar, legislature, executive branch, or public may file with the clerk of the supreme court comments on any of the proposed amendments and the proposed Notice of Appeal form. An original and seven copies of all comments shall be filed. Comments may also be e-mailed to the court at:

rulescomment@courts.state.nh.us

Copies of the proposed changes are available upon request from the clerk of the supreme court at the N.H. Supreme Court Building, 1 Noble Drive, Concord, New Hampshire 03301 (Tel. 271-2646). In addition, the proposed changes are available on the Internet at:

http://www.courts.state.nh.us/supreme

The current rules of the New Hampshire state courts are also available on the Internet at:

http://www.courts.state.nh.us/rules/index.htm

It is the court's current intention to implement the expanded appellate review process effective September 1, 2003. If that goal is met, then it is expected that the new appellate review process will apply to appeals in which the clerk's written notice of the final trial court decision that is the subject of appeal is dated on or after September 1, 2003.

April 22, 2003

                                                                                    ATTEST: ___________________________

                                                                                                    Eileen Fox, Clerk
                                                                                                    Supreme Court of New Hampshire

APPENDIX A

Amend Supreme Court Rule 3 by adding a definition of "Non-discretionary appeal," so that said rule as amended shall state as follows:

 

Rule 3. Definitions.

"Administrative agency": Includes agency, board, commission, or officer.

 

"Appeal": Appellate review of rulings adverse to a party, after a final decision on the merits in a lower court.

 

"Appeal document": Includes notice of appeal (rule 7), interlocutory appeal (rule 8), interlocutory transfer without ruling (rule 9), appeal from administrative agency by petition (rule 10), and petition for original jurisdiction (rule 11).

 

"Appeal from administrative agency by petition": Appellate review of a party's grounds for asserting that an administrative agency's final order or decision on the merits is unlawful or unreasonable.

 

"Briefs":

"Opening brief": The brief filed first pursuant to court order.

"Opposing brief": The brief filed by the opposing party after the filing of the opening brief.

"Reply brief": See rule 16(7).

"Supplemental brief": See rule 16(7).

 

"Clerk": Where the context refers to the clerk of a lower court, "clerk" includes a clerk of a lower court, a register of probate, or the administrative agency official who is the equivalent of a clerk of court or who is charged with performing the duties associated with a clerk of court, and their respective assistants and deputies; where the context refers to the clerk of the supreme court, "clerk" includes his or her assistants and deputies.

 

"Decision on the merits": Includes order, verdict, opinion, decree, or sentence following a hearing on the merits or trial on the merits and the decision on motions made after such order, verdict, opinion, decree or sentence. Untimely filed post-trial motions will not stay the running of the appeal period unless the lower court waives the untimeliness within the appeal period.

 

"Declination of acceptance order": The supreme court does not deem it desirable to review the issues in a case, as a matter of sound judicial discretion and with no implication whatever regarding its views on the merits.

 

"First class mail": First class postage prepaid, whether certified, registered, uncertified, or unregistered.

 

"Interlocutory appeal": Appellate review of rulings adverse to a party, before a final decision on the merits in a lower court.

 

"Interlocutory transfer without ruling": Appellate review of questions of law transferred by a lower court or administrative agency before a final decision on the merits in the lower court or administrative agency and without ruling by the lower court or administrative agency.

 

"Lower court": Single justice, master, sentence review board, or other adjudicative body.

 

"Moving party": The plaintiff in an interlocutory transfer, the party appealing by appeal or by interlocutory appeal, or the party petitioning that the supreme court exercise its original jurisdiction.

 

"Non-discretionary appeal": An appeal from a final decision on the merits issued by a superior court, district court, probate court, or family division court, other than the following:

 

(1) an appeal from a final decision on the merits issued in a post-conviction review proceeding (including petitions for writ of habeas corpus and motions for new trial);

 

(2) an appeal from a final decision on the merits issued in a collateral challenge to any conviction or sentence;

 

(3) an appeal from a final decision on the merits issued in a sentence modification or suspension proceeding;

 

(4) an appeal from a final decision on the merits issued in an imposition of sentence proceeding;

 

(5) an appeal from a final decision on the merits issued in a parole revocation proceeding; and

 

(6) an appeal from a final decision on the merits issued in a probation revocation proceeding.

 

"Notice of appeal": The notice filed to initiate an appeal from the lower court's final decision on the merits, in the form prescribed by these rules.

 

"Petition for original jurisdiction": Request that the supreme court exercise its original jurisdiction, whether exclusive or nonexclusive and whether in aid of its appellate jurisdiction or its supervisory jurisdiction, and that the court issue an extraordinary writ or grant other suitable relief.

 

"Trial court reporter": Lower court or administrative agency reporter.

APPENDIX B

Amend Supreme Court Rule 5(1) by deleting said section and replacing it with the following:

 

Rule 5. Docketing the Case: Filing the Record.

 

(1) In an interlocutory appeal from a ruling and in an appeal from an administrative agency by petition, the party appealing, and in an interlocutory transfer without ruling and in a petition requesting the supreme court to exercise its original jurisdiction, the plaintiff shall pay the entry fee prescribed by the supreme court and shall simultaneously file the original and 12 copies of the required forms in the office of the clerk of this court, 1 copy with each of the parties, and 2 (where appropriate, 3) copies with the office of the clerk of the court or agency from which the appeal or transfer is taken (including a register of probate), 1 each of which copies shall be furnished to the trial judge and master by that clerk.

 

In an appeal from a lower court decision on the merits pursuant to Rule 7 other than a non-discretionary appeal, the party appealing shall pay the entry fee prescribed by the supreme court and, unless differently provided by law, shall simultaneously file the original and 12 copies of the notice of appeal and of the attachments mentioned on the applicable notice of appeal form, in the office of the clerk of this court, 1 copy with each of the parties, and 2 (or where appropriate, 3) copies with the office of the clerk of the court from which the appeal is taken (including a register of probate). The latter clerk shall provide a copy to the judge and master.

 

In a non-discretionary appeal from a lower court decision on the merits pursuant to rule 7, the party appealing shall pay the entry fee prescribed by the supreme court and, unless differently provided by law, shall simultaneously file the original and 2 copies of the notice of appeal and the attachments mentioned on the applicable notice of appeal form in the office of the clerk of this court, 1 copy with each of the parties, and 2 (or where appropriate, 3) copies with the office of the clerk of the court from which the appeal is taken (including a register of probate). The latter clerk shall provide a copy to the judge and master.

 

In all criminal appeals, the defendant shall simultaneously file 1 copy of the notice of appeal with the attorney general.

 

A cross-appeal by another party shall be docketed in the same manner, accompanied by the required entry fee, subject to rule 7(5) or rule 10(9).

 

A motion to extend time to file an appeal document, when not accompanied by the appeal document, shall be docketed upon the filing of an original and 7 copies of the motion, accompanied by the required entry fee. The moving party shall simultaneously file 1 copy with each of the parties, 1 copy with the office of the clerk of the court or agency from which the appeal or transfer is taken, and (in the case of an appeal from an administrative agency) 1 copy with the attorney general. A motion to extend time to file a non-discretionary appeal shall be granted only in exceptional circumstances. See Rule 21(6).

 

APPENDIX C

Amend Supreme Court Rule 7 by deleting said rule and replacing it with the following:

 

Rule 7. Appeal from Lower Court Decision on the Merits


(1) (A) Non-discretionary appeals.

 

Unless otherwise provided by law or by these rules, a non-discretionary appeal shall be by notice of appeal in the form of notice of appeal approved by the supreme court for the filing of a non-discretionary appeal. The form of notice of appeal for the filing of a non-discretionary appeal appears in the appendix to these rules ("Non-discretionary Appeal Form"). Such an appeal shall be filed by the moving party within 30 days from the date on the clerk's written notice of the decision on the merits.

 

(B) Other appeals from lower court decision on the merits.

 

Unless otherwise provided by law or by these rules, an appeal from a lower court decision on the merits other than a non-discretionary appeal shall be by notice of appeal in the form of notice of appeal approved by the supreme court for the filing of such an appeal. The form of notice of appeal for the filing of an appeal from a lower court decision on the merits other than a non-discretionary appeal appears in the appendix to these rules ("Discretionary Appeal Form"). Such an appeal shall be filed by the moving party within 30 days from the date on the clerk's written notice of the decision on the merits.

 

(C) The definition of "decision on the merits" in rule 3 includes decisions on motions made after an order, verdict, opinion, decree or sentence. A timely filed post-trial motion stays the running of the appeal period for all parties to the case in the lower court including those not filing the motion. Untimely filed post-trial motions will not stay the running of the appeal period unless the lower court waives the untimeliness within the appeal period. Successive post-trial motions will not stay the running of the appeal period. See Petition of Ellis, 138 N.H. 159 (1993).

 

In criminal appeals, the time for filing a notice of appeal shall be within 30 days from the date of sentencing or the date of the clerk's written notice of disposition of post-trial motions, whichever is later, provided, however, that the date of the clerk's written notice of disposition of post-trial motion shall not be used to calculate the time for filing a notice of appeal in criminal cases if the post-trial motion was filed more than 10 days after sentencing.

(2) An appeal shall be deemed filed when the original and all copies of the notice of appeal in proper form, together with the filing fee, are received by the clerk of this court within 30 days from the date on the clerk's written notice of the decision.

(3) An appeal permitted by law on a different form and by a different procedure shall be deemed timely filed when it is received by the clerk of this court on the form and by the procedure prescribed by law.

(4) All parties to the proceedings in the court from whose decision on the merits the appeal is being taken shall be deemed parties in this court, unless the moving party shall notify the clerk of this court in writing of his belief that one or more of the parties below has no interest in the outcome of the transfer. The moving party shall mail a copy of the letter first class, or give a copy, to each party in the proceeding below. A party thus designated as no longer interested may remain a party in this court by notifying the clerk of this court, with notice mailed first class or given to the other parties, that he has an interest in the transfer. Parties supporting the position of the moving party shall meet the time schedule provided for that party.

 

(5) If a timely notice of appeal is filed by a party, any other party may file a notice of cross-appeal within 10 days from the date on which the first notice of appeal was filed and shall pay a filing fee therewith.

(6) (A) The appealing party in a non-discretionary appeal shall attach to the notice of appeal the decision below.

(B) The appealing party in an appeal other than a non-discretionary appeal shall attach to the notice of appeal the decision below, the clerk's written notice of the decision below, any order disposing of a timely-filed post-trial motion, the clerk's written notice of any order disposing of a timely-filed post-trial motion, and such other pleadings and documents as the court needs to evaluate the specific questions raised on appeal and to determine whether the appeal is timely filed. Legal memoranda, including legal memoranda filed with the trial court, shall not be submitted without the prior approval of the clerk. If any documents are attached to the notice of appeal, then the notice of appeal shall contain a table of contents. If a copy of the pertinent text of the constitutions, statutes and other documents aggregates more than 5 pages, it may be filed as a separate appendix including a table of contents referring to numbered pages, and only 8 copies shall be filed. Note: Also see rule 26(5). If a ground for appeal is the legal sufficiency of the evidence, the question in the notice of appeal form raising that ground shall contain a succinct statement of why the evidence is alleged to be insufficient as a matter of law.

APPENDIX D

Adopt new Supreme Court Rule 7-A as follows:

Rule 7-A. Motion to Stay or for Remand

 

(1) A motion to stay an order or judgment of a lower tribunal shall not be filed in this court unless the movant has first unsuccessfully sought similar relief from the lower tribunal. This requirement may be waived by the court upon motion in extraordinary circumstances. Any motion to stay shall be accompanied by a copy of the request for similar relief filed with the lower tribunal, any objection filed thereto, and the lower tribunal's order denying such relief. In addition, any motion to stay shall be accompanied by a copy of the order or judgment which the motion seeks to have stayed.

 

(2) A motion for remand or partial remand shall be accompanied by a copy of the pleading(s) that the movant intends to file with the lower tribunal if the motion is granted. Unless the court orders otherwise, the grant of a partial remand shall not stay the proceedings in this court.

 

Comment

 

Perfection of an appeal vests exclusive jurisdiction in the supreme court over those matters arising out of, and directly related to, the issues presented by the appeal. See Rautenberg v. Munnis, 107 N.H. 446, 447 (1966). The trial court is not in a position to act on such matters while an appeal is pending unless the case is remanded for that purpose. See id. at 448. Rautenberg also recognized, however, that the trial court is not prohibited from passing on collateral, subsidiary or independent matters affecting the case and the trial court has adequate authority and jurisdiction to preserve the status quo. See id.

 

In addition, Superior Court Rule 74 provides that a decree does not go to final judgment if a timely appeal is taken to the supreme court. See Rollins v. Rollins, 122 N.H. 6, 9 (1982). Thus, in an appeal from a divorce decree, for example, a timely appeal will prevent the trial court's final decree from going into effect, and the temporary decree would remain in effect while the appeal is pending. See id. at 10. Rollins also recognized, however, that the trial judge has the authority to order that the final decree, at least in part, is to be in effect while the appeal was pending, and that an appellant's only recourse in such a case was to obtain a stay of that order in the trial court or the supreme court. See id. (final decree as to level of child support held to be in effect while appeal was pending); Nicolazzi v. Nicolazzi, 131 N.H. 694, 696 (1989) (acknowledging trial court's discretion to set levels of alimony and child support to be paid during appeal).

 

This rule is intended to: (1) provide a procedural mechanism for requesting a stay of the judgment of a lower tribunal that is not stayed by the filing of a timely appeal; and (2) provide a procedural mechanism for requesting a remand or partial remand to a lower tribunal when necessary to allow the lower tribunal to act upon a matter that is not a collateral, subsidiary or independent matter affecting the case.

APPENDIX E

Amend Supreme Court Rule 13 by deleting said rule and replacing it with the following:

 

Rule 13. The Record.

 

(1) The papers and exhibits filed and considered in the proceedings in the lower court or administrative agency from which the questions of law have been transferred, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk shall be the record in all cases entered in the supreme court.

 

(2) Neither the original nor a reproduction of the record nor any part of the record shall be transmitted to the supreme court by the lower court or administrative agency from which the questions of law have been transferred, unless a supreme court order, rule, or form expressly requires such a transmittal.

 

(3) The moving party shall be responsible for ensuring that a record sufficient for the court to decide the questions of law presented by the case is in fact transmitted to the supreme court. The supreme court may dismiss the case for lack of such a record.

 

(4) If more than one transfer of questions of law in a case is made to the supreme court, each moving party shall comply with the provisions of rule 14(1) and of this rule and a single record shall be transmitted.

 

(5) In lieu of the record as defined in section (1) of this rule, the parties may prepare and sign an original and 12 copies of a statement of the case showing how the questions of law transferred arose and were decided, and setting forth only so many of the agreed facts as are essential to a decision of the questions presented.

 

(6) The exhibits in the court or agency below shall be transferred without printing and shall include those designated in the notice of appeal and those additional exhibits designated by any other party by letter to the clerk of the supreme court.

APPENDIX F

Amend Supreme Court Rule 15 by deleting said rule and replacing it with the following:

 

Rule 15. Transcripts.

 

(1) Counsel shall attempt to enter into stipulations, such as an agreed statement of facts, that will reduce the size of transcripts or avoid them completely. If such a stipulation is entered into, an original and 12 copies thereof must be filed with the clerk's office if it is not included in the notice of appeal.

 

(2) (a) Non-discretionary appeals. The moving party shall have completed the notice of appeal form which includes the transcript information, including the date of the proceedings to be transcribed, the length of the proceedings, the name(s) of any court reporters, and the deposit required. A transcript of the parts of the proceedings necessary for appeal and not already on file in the lower court from which the questions of law have been transferred shall be prepared. The supreme court clerk's office shall issue a scheduling order notifying the moving party to pay the deposit for the transcript to the clerk of the lower court within 15 days from the date on the written notice or have the appeal deemed waived or have the case dismissed. Upon timely receiving the required deposit, the lower court clerk shall immediately notify the court reporter to proceed with the transcription and shall notify the clerk of the supreme court that the court reporter has been so notified. If the lower court clerk does not timely receive the required deposit, the clerk shall immediately so notify the clerk of the supreme court. For the purposes of initial assessment of transcription costs pursuant to this rule, any party filing an appeal may be considered a moving party, and in cases of multiple appeals, the court, within its discretion, may assess transcription costs as justice requires.

 

(b) Other appeals from lower court decision on the merits. If the appeal is accepted by the court for briefing, an order shall be issued to the moving party requiring the completion of a transcript order form, which includes the transcript information, including the date of the proceedings to be transcribed, the length of the proceedings, the name(s) of any court reporters, and the deposit required. A transcript of the parts of the proceedings necessary for appeal and not already on file in the lower court from which the questions of law have been transferred shall be prepared. After the transcript order form has been filed, the supreme court clerk's office shall issue a scheduling order notifying the moving party to pay the deposit for the transcript to the clerk of the lower court within 15 days from the date on the written notice or have the appeal deemed waived or have the case dismissed. Upon timely receiving the required deposit, the lower court clerk shall immediately notify the court reporter to proceed with the transcription and shall notify the clerk of the supreme court that the court reporter has been so notified. If the lower court clerk does not timely receive the required deposit, the clerk shall immediately so notify the clerk of the supreme court. For the purposes of initial assessment of transcription costs pursuant to this rule, any party filing an appeal may be considered a moving party, and in cases of multiple appeals, the court, within its discretion, may assess transcription costs as justice requires.

 

(3) If the moving party intends to argue in the supreme court that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. Unless otherwise ordered by the supreme court, the transcript shall contain all the oral proceedings except opening statements, medical testimony, arguments, and charge.

 

(4) Unless the parties agree, or the court otherwise orders, the trial court reporter shall produce a completed original and 2 copies of a transcript as early as possible within 45 days after the reporter is notified by the lower court clerk to proceed with the transcription. Requests for extensions of time in which to prepare a transcript shall not be favored, but a trial court reporter may request that the supreme court grant an extension of time not exceeding 15 days. Such a request shall also give the reasons for the need for an extension. The trial court reporter shall send a copy of the letter to the administrative assistant to the chief justice of the superior court.

 

(5) The supreme court may order that the preparation of a transcript in a case be given immediate attention.

 

(6) The original transcript shall be transmitted to the supreme court as part of the record on appeal, and the copies shall be transmitted to the parties.

 

(7) The trial court reporter shall bind the transcript in a volume or volumes, with the pages consecutively numbered throughout all volumes. The transcript shall be indexed. The index in the first volume shall refer to the number of each volume and the page, and shall be cumulative for all volumes; the index in each other volume shall cover the subject matter in that volume. The index shall list each witness alphabetically, and under the name of the witness, shall refer to the page number where the direct and each other examination of the witness begins. There shall be a list of exhibits by number or letter, with a brief indication of the nature of the contents, and a list of the pages of the transcript where each exhibit has been identified, offered, received, or rejected. There shall be a list of other important parts of the trial that may have been transcribed, such as opening statements, arguments to the jury, and instructions, with a reference to the page where each begins.

 

(8) The State in every case in which it is a party, and the plaintiff in every case in which the State is not a party, shall file with the clerk of the supreme court a copy of the transcript immediately after oral argument has concluded or immediately after the case is submitted for decision on the briefs and without oral argument.

 

 

 

APPENDIX G

Amend Supreme Court Rule 16 by deleting said rule and replacing it with the following:

  

Rule 16. Briefs.

 

(1) Briefs may be prepared using a printing, duplicating or copying process capable of producing a clear letter quality black image on white paper, but shall not include ordinary carbon copies. If briefs timely filed are not clearly legible, the clerk of the supreme court shall require that new copies be substituted, but the filing shall not thereby be deemed untimely.

 

Each brief shall be in pamphlet form upon good quality, nonclinging paper 8 1/2 by 11 inches in size, with front and back covers of durable quality. Each brief shall have a minimum margin of one inch on the binding side and shall be firmly bound at the left margin. Any metal or plastic spines, fasteners or staples shall be flush with the covers and shall be covered by tape. The covers shall be flush with the pages of the case. See also rule 26(5).

 

If briefs are produced by commercial printing or duplicating firms, or, if produced otherwise and the covers to be described are available, the cover of the brief of the appealing party should be blue; that of the opposing party, red; that of an intervenor or amicus curiae, green; and that of any reply brief, including the answering brief in accordance with Rule 16(8), gray. The cover of the appendix, if separately printed, should be white.

 

The court will not accept any other method of binding unless prior approval has been obtained from the clerk of the supreme court.

 

(2) The front covers of the briefs and of appendices, if the appendices are separately produced, shall contain: (a) the name of this court and the docket number of the case; (b) the title of the case; (c) the nature of the proceeding in this court, e.g., appeal by petition pursuant to RSA 541: 6, and the name of the court or agency below; (d) the title of the document, e.g., brief for plaintiff; (e) the names and addresses of counsel representing the party on whose behalf the document is filed; and (f) the name of counsel who is to argue the case. See form in appendix.

 

(3) So far as possible, the brief of the moving party on the merits shall contain in the order here indicated:

 

(a) A table of contents, with page references, and a table of cases listed alphabetically, a table of statutes and other authorities, with references to the pages of the briefs where they are cited.

 

(b) The questions presented for review, expressed in terms and circumstances of the case but without unnecessary detail. While the statement of a question need not be worded exactly as it was in the appeal document, the question presented shall be the same as the question previously set forth in the appeal document. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein. The moving party may argue in his brief any question of law not listed in his appeal document, but only if the supreme court has granted a motion to add such question, and he has presented a record that is sufficient for the supreme court to decide the questions presented. Motions to add a question may be filed only by a party who filed an appeal document (including a party who filed a cross-appeal), and shall be filed at least 20 days prior to the due date of the moving party's brief.

 

After each statement of a question presented, counsel shall make specific reference to the volume and page of the transcript where the issue was raised and where an objection was made, or to the pleading which raised the issue. Failure to comply with this requirement shall be cause for the court to disregard or strike the brief, and opposing counsel may so move within ten days of the filing of a brief not in compliance with this rule.

 

(c) The constitutional provisions, statutes, ordinances, rules, or regulations involved in the case, setting them out verbatim, and giving their citation. If the provisions involved are lengthy, their citation alone will suffice at that point, and their pertinent text shall be set forth in an appendix.

 

(d) A concise statement of the case and a statement of facts material to the consideration of the questions presented, with appropriate references to the appendix or to the record.

 

(e) A summary of argument, suitably paragraphed, which should be a succinct, but accurate and clear, condensation of the argument made in the body of the brief. It should not be a mere repetition of the headings under which the argument is arranged.

 

(f) The argument, exhibiting clearly the points of fact and of law being presented, citing the authorities relied upon.

 

(g) A conclusion, specifying the relief to which the party believes himself entitled.

 

(h) A copy of the decision(s) below that are being appealed or reviewed.

 

(4) (a) The brief of the opposing party shall conform to the foregoing requirements, except that no statement of the case need be made beyond what may be deemed necessary in correcting any inaccuracy or omission in the statement of the other side, and except that subsections (b), (c), and (h) of subsection (3) need not be included unless the opposing party is dissatisfied with their presentation by the other side.

 

(b) Instead of a brief, the opposing party in a non-discretionary appeal may file a memorandum of law not to exceed 15 pages in length. A memorandum of law need not comply with the requirements for a brief set forth in this rule. A party who files a memorandum of law shall be deemed to have consented to the waiver of oral argument.

 

(5) Reply briefs shall conform to such parts of this rule as are applicable to the briefs of an opposing party, but need not contain a summary of argument, regardless of their length, if appropriately divided by topical headings.

 

(6) Briefs and memoranda of law must be compact, logically arranged with proper headings, concise and free from burdensome, irrelevant, and immaterial matter. Briefs and memoranda of law not complying with this section may be disregarded and stricken by the supreme court.

 

(7) Unless specially ordered otherwise, the original and 12 copies of the opening brief shall be filed with the clerk of the supreme court, in addition, 2 copies with counsel for each party separately represented, and like distribution shall be made of the opposing brief, opposing memorandum of law, or any other brief, all within the times specified in the applicable scheduling order.

 

The party filing the opening brief may similarly file, and make like distribution of, a reply brief, which shall be filed by the earlier of 30 days following the submission of the opposing brief or opposing memorandum of law, or 10 days before the date of oral argument. A reply brief may be filed after the expiration of the applicable time period only by leave of court. Responses to a reply brief shall not ordinarily be allowed. No response to a reply brief may be filed except by permission of the court received in advance.

 

Whenever a party desires to present late authorities, newly enacted legislation, or other intervening matters that were not available in time to have been included in his brief, he may similarly file, and make like distribution of, such new matters up to and including the day of oral argument, or by leave of the supreme court thereafter.

 

The clerk of the supreme court shall not accept any brief or memorandum of law after a case has been argued or submitted, unless the supreme court has granted to the party offering to file the brief or memorandum of law special leave to do so in advance.

 

(8) If a cross-appeal is filed, the plaintiff in the lower court or in the administrative agency shall be deemed the moving party for the purposes of this rule, unless the parties agree or the court orders differently. The brief of the opposing party shall contain the issues and argument involved in his appeal as well as the answer to the brief of the moving party. The moving party may file an answering brief within the time specified in the scheduling order.

 

(9) All references in a brief or memorandum of law to the appendix or to the record must be accompanied by the appropriate page number.

 

Citations to Supreme Court of the United States cases that cannot be made to the official United States Reports or to the Supreme Court Reporter shall include the month, day, and year of decision or a reference to United States Law Week. Citations to other federal decisions not presently reported shall identify the court, docket number, and date.

 

Citations to the decisions of this court may be to the New Hampshire Reports only. Citations to other State court decisions may either be: (a) to the official report and to the West Reporter system, with the year of decision; or (b) to the West Reporter only, in which case the citation should identify the State court by name or level, and should mention the year of decision. 

 

(10) The party filing a brief or memorandum of law shall conclude the pleading (1) with a certification that the party has hand-delivered or has sent by first class mail two copies of the pleading to the other counsel in the case, and (2) when applicable, with a statement that the party waives oral argument or that the party requests oral argument. A party requesting oral argument shall designate the lawyer to be heard if there are two or more lawyers on the party's side and shall estimate the time not exceeding 15 minutes for such argument.

 

The name of the party filing the brief or memorandum of law and the name of the lawyer representing the party shall appear in type at the conclusion of the pleading, and the lawyer shall sign the pleading. Names of persons not members of the bar or not parties shall not appear on the notice of appeal, the brief, the memorandum of law, or in the appendix. See rule 33(2).

 

(11) Each brief and memorandum of law shall consist of standard sized typewriter characters produced on one side of each leaf only. The text shall be double spaced.

 

Except by permission of the court received in advance, no reply brief (or response thereto) shall exceed 10 pages, and no other brief shall exceed 35 pages, exclusive of pages containing the table of contents, tables of citations, and any addendum containing pertinent texts of constitutions, statutes, rules, regulations, and other such matters. 

 

(12)  Failure of the appealing party to file a brief shall constitute a waiver of the appeal and the case shall be dismissed.

APPENDIX H

Amend Supreme Court Rule 17 by deleting said rule and replacing it with the following:

 

 

Rule 17. Appendix to Brief.

 

(1) In determining whether there is to be an appendix and what parts of the record are to be included in the appendix, the parties shall consider that only those parts of the record that the rules of the supreme court or the forms approved by the supreme court require to be submitted and those parts of the record that a party has arranged to be transmitted to the court will be available to the supreme court for reference and examination. The court will not ordinarily review any part of the record that has not been transmitted to it or provided in an appendix. See Rule 13(3).

 

If there is to be an appendix of relevant documents or pleadings, the parties are encouraged to agree on its contents as an addendum to the moving party's brief or as a separate submission, if voluminous. If the moving party's appendix is not deemed to be sufficient, the opposing party may prepare and file an appendix of such additional parts of the record as an addendum to his brief or memorandum of law or, if voluminous, as a separate submission.

 

(2) The original and 12 copies of an appendix meeting the requirements of rule 6(2) shall be filed in the office of the clerk of the supreme court and its pages shall be sequentially numbered. The cover of the appendix should be white.

 

(3) The cost of producing the appendix shall be taxed as costs in the case, but if either party shall cause matter to be included in the appendix unnecessarily, such as the full text of decisions of this court or irrelevant pleadings, the supreme court may impose the cost of producing such parts on that party, even though he may be the prevailing party.

 

(4) At the beginning of the appendix there shall be inserted a list of the parts of the record that it contains in the chronological order in which the parts are set out in it, with references to the pages of the appendix at which each part begins. When matter contained in the transcript of proceedings is set out in the appendix, the page of the transcript at which such matter may be found shall be indicated in brackets immediately before the matter that is set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters, e.g., captions, subscriptions, acknowledgments, shall be omitted.

 

APPENDIX I

Amend Supreme Court Rule 18 by deleting said rule and replacing it with the following:

 

 

Rule 18. Oral Argument.

 

(1) Oral argument may be shortened, or dispensed with, by order of the court. Oral argument will probably be dispensed with if the questions of law are not novel, and the briefs adequately cover the arguments; if the questions of law involve no more than an application of settled rules of law to a recurring fact situation; if the sole question of law is the sufficiency of the evidence, the adequacy of instructions to the jury or rulings on the admissibility of evidence, and the briefs refer to the record, which will determine the outcome.

 

(2) A party who has not filed a brief shall not be heard orally. A party who has filed a memorandum of law in lieu of a brief shall be deemed to have waived oral argument, but shall be heard orally if oral argument is nevertheless held.

 

(3) Oral argument shall be limited to not more than 15 minutes to a side (including questions by the court), except that, for good cause shown prior to the publication of the oral argument list normally occurring approximately 4 weeks prior to the first day of the session, the clerk may grant additional time. Without prior written approval, only one lawyer shall be heard for each side on the oral argument of a case.

 

If there are cross-appeals, they shall be argued together as one case and in the time of one case. The plaintiff in the case below shall be deemed the party appealing for the purposes of this paragraph, unless the parties agree or the supreme court directs differently.

 

(4) Oral argument shall emphasize and clarify the written argument appearing in the briefs. The supreme court does not favor any oral argument that is read from briefs or from a prepared text.

 

(5) The party having the opening shall also have the close, but the supreme court does not favor a closing argument, except a closing argument that is limited to unexpected matters.

 

(6) The supreme court may, on its own motion or for good cause shown on motion of either party, advance any case for hearing and prescribe an abbreviated briefing schedule.

 

(7) The supreme court looks with favor on the submission of cases on briefs and without oral argument, but it may require oral argument. However, oral argument will be required unless (a) the court has on its own motion ordered submission on briefs without oral argument, (b) a stipulation for submission on briefs without oral argument joined in by all parties has been filed not later than ten (10) days prior to the date scheduled for such argument and been granted by the court, or (c) a motion to waive oral argument has been filed not later than twenty (20) days prior to the date scheduled for such argument and been granted by the court.

 

(8) The supreme court shall make available to the parties, attorneys, and members of the public duplicate copies of the CD-ROM recording of oral argument. Upon receipt of a written request for a duplicate CD-ROM recording of oral argument, the clerk shall release a copy of the CD-ROM recording except that no duplicate of an oral argument made confidential by statute or case law shall be released. The fee for each copy shall be $25.

APPENDIX J

Amend Supreme Court Rule 21 by deleting said rule and replacing it with the following:

 

Rule 21. Motions and Memoranda.

(1) Motions relating to substance shall be entered upon the filing with the clerk of the supreme court of the original and 7 copies of the motion and a signed statement by counsel that a copy of the motion and notice of the filing have been mailed first class or delivered to opposing counsel. See rule 26. Motions shall be upon good quality, nonclinging paper 8 by 11 inches in size. They shall consist of standard size typewriter characters produced on one side of each leaf only. The text shall be double spaced. 

 

(2) Every motion to the court shall state with particularity the grounds on which it is based and the order or relief sought. A memorandum of law, affidavits, or other papers in support of the motion may be filed with it. 

 

(3) The original and 7 copies of objections to a motion relating to substance may be filed within 10 days from the date the motion has been filed in the clerk's office. The grounds of objections shall be stated with particularity. A memorandum of law, affidavits, or other papers in support of the objections may be filed with the objections. 

 

(3-A) No reply to an objection may be filed without permission of the court received in advance. A motion for permission to file a reply must be filed within 10 days from the date the objection has been filed in the clerk's office; provided, however, that the court may act upon a motion prior to the expiration of said ten-day period. Any reply to an objection filed without prior permission of the court shall not be considered by the court.

 

(4) Oral argument will not be heard on any motion, except at the invitation of the court. 

 

(5) If a motion does not relate to substance, but relates solely to scheduling or procedure, an original and one copy shall be filed with the clerk of the supreme court, with copies to opposing counsel. See rule 26. All motions relating solely to scheduling or procedure shall state whether opposing counsel consents. 

 

(6) No motion to extend time to file an appeal document will be accepted unless accompanied by the required entry fee. See also rule 5(1). No motion for late entry of an appeal document will be accepted unless accompanied by the appeal document and the required entry fee and unless the appeal document conforms to applicable rules. Motions to extend time to file an appeal document and motions for late entry of an appeal document are not favored and shall not ordinarily be granted. Motions to extend time to file a non-discretionary appeal and motions for late entry of a non-discretionary appeal shall be granted only upon a showing of exceptional circumstances.   No court or agency other than the supreme court may extend the time to file an appeal document in the supreme court or permit late entry of an appeal document in the supreme court.

 

(7) A single justice may rule on all non-dispositive motions and may issue any non-dispositive order.  A single justice may rule upon requests to withdraw or dismiss an appeal filed by the appellant, may dismiss an appeal pursuant to Rule 5(4), and may dismiss an appeal without prejudice upon procedural grounds.  Any order of a single justice shall state which justice so ruled.   

 

(8)  The clerk of the supreme court may rule on all motions relating to scheduling except for motions for expedited consideration, motions to extend time to file an appeal document, and motions for late entry of an appeal document. The clerk may issue briefing and other scheduling orders.  The clerk may grant or refer to the court dispositive motions to which all parties consent, and non-dispositive motions to which no objection is filed or all parties consent except for motions to extend time to file an appeal document and motions for late entry of an appeal document. With respect to other motions filed between the issuance of the scheduling order pursuant to Rule 12-B and the date of oral argument, the clerk may refer such motions to the court or issue an order to the effect that no ruling will be made on the motion prior to oral argument but that the parties may address the motion during their allotted oral argument time.  Any order of the clerk shall state that it is issued pursuant to this rule. 

  

(9)  Any motion to reconsider an order issued by a single justice or the clerk shall be filed within ten days from the date of the issuance of the order.  A motion to reconsider an order issued by a single justice shall be referred to the court for decision.  A motion to reconsider an order issued by the clerk shall be referred to a single justice or to the court for decision.

 

(10) Whenever the court issues an order requiring or permitting a party to file a brief memorandum, the brief memorandum shall be entered upon the filing with the clerk of the supreme court of the original and 7 copies of the brief memorandum and a signed statement by counsel that a copy of the brief memorandum and notice of the filing have been mailed first class or delivered to opposing counsel. See rule 26.  Brief memoranda shall be upon good quality, nonclinging paper 8 by 11 inches in size. They shall consist of standard size typewriter characters produced on one side of each leaf only. The text shall be double spaced.   

APPENDIX K

Amend Supreme Court Rule 25 by deleting said rule and replacing it with the following:

 

 

Rule 25. Summary Disposition.

(1) Except in a non-discretionary appeal, the supreme court may at any time, on its own motion and without notice or on such notice as it may order, dispose of a case, or any question raised therein, summarily. An order of summary affirmance under this rule may be entered when (a) no substantial question of law is presented and the supreme court does not disagree with the result below, or (b) the case includes the opinion of the lower court, which identifies and discusses the issues presented and with which the supreme court does not disagree, or (c) the case includes the decision of the administrative agency appealed from, and no substantial question of law is presented and the supreme court does not find the decision unjust or unreasonable, or (d) other just cause exists for summary affirmance, in which case the order shall contain a succinct statement of the reason for affirmance. An order of summary dismissal under this rule may be entered when the supreme court has not considered the merits, because the court clearly lacks jurisdiction, or other just cause for summary dismissal exists, in which case the order shall contain a succinct statement of the reason for dismissal. An order of summary reversal may be made by the supreme court under this rule for just cause and the order shall contain a succinct statement of the reason therefor.

 

(2) Except in a non-discretionary appeal, a party may move for summary disposition of a docketed case by filing an original and 7 copies of a motion for summary reversal or affirmance within 20 days of the filing of the appeal. He shall serve a copy of the motion on the opposing party. No motion for summary disposition of a docketed case shall be accepted after 20 days from the filing of the appeal, except if such motion is for the purpose of bringing to the court's attention the effect that an opinion issued since the filing of the docketed case may have on the docketed case. The opposing party has 10 days from the date of filing of any motion for summary disposition within which to file an original and 7 copies of a response to the motion. The supreme court may at anytime, on such motion or response or both, or on its own motion, without notice or on such notice as the court may order, dispose of the case summarily.

 

(3) The motion for summary disposition and the response to it may each be accompanied by an original and 7 copies of a memorandum of law or brief.

 

(4) The filing of a motion for summary disposition and of a response shall not toll the time limitations established by law, rule, or order.

 

(5) Cases summarily disposed of under this rule shall not be regarded as establishing precedent or be cited as authority.

 

(6) In a non-discretionary appeal, no motions for summary affirmance or summary reversal shall be filed. No such motion shall be considered or acted upon by the court.

 

(7) In a non-discretionary appeal, any party may file a motion to dismiss the appeal based upon lack of subject matter jurisdiction, mootness, untimeliness, or other cause unrelated to the merits of the appeal. The court may, without the issuance of any order, defer ruling upon such a motion until after briefs are filed and oral argument, if any, is held. Any order or decision by the court disposing of the case on the merits shall be deemed to be a denial of any pending motion to dismiss.

APPENDIX L

Adopt a new notice of appeal form for Rule 7 non-discretionary appeals as follows:

NEW HAMPSHIRE SUPREME COURT

NOTICE OF APPEAL

RULE 7 NON-DISCRETIONARY APPEAL

1. COMPLETE CASE TITLE AND DOCKET NUMBERS IN TRIAL COURT

 

 

 

 

 

2. COURT APPEALED FROM AND NAME OF JUDGE(S) WHO ISSUED DECISION

 

 

 

3A. NAME AND ADDRESS OF APPEALING PARTY

 

 

 

 

 

 

 

 

 

 

 

 

3B. NAME, FIRM NAME, ADDRESS AND TELEPHONE NUMBER OF APPEALING PARTY’S COUNSEL

 

 

 

 

 

APPELLATE DEFENDER REQUESTED?

4A. NAME AND ADDRESS OF OPPOSING PARTY

 

 

 

 

 

 

 

 

 

 

 

 

4B. NAME, FIRM NAME, ADDRESS AND TELEPHONE NUMBER OF OPPOSING PARTY’S COUNSEL
5. DATE OF CLERK’S NOTICE OF DECISION OR SENTENCING

DATE OF CLERK’S NOTICE OF DECISION ON POST-TRIAL MOTION, IF ANY

 

 

 

6. CRIMINAL CASES: DEFENDANT’S SENTENCE AND BAIL STATUS

 

7. NAMES OF ALL OTHER PARTIES AND COUNSEL IN TRIAL COURT OR AGENCY

 

 

 

 

 

 

 

 

 

 

 

8. IS ANY PART OF CASE CONFIDENTIAL? IF SO, CITE AUTHORITY

 

 

9. IF ANY PARTY IS A CORPORATION, ATTACH A LIST OF THE NAMES OF PARENT, SUBSIDIARIES AND AFFILIATES

 

1. 10. DO YOU KNOW OF ANY REASON THAT ONE OR MORE OF THE SUPREME COURT JUSTICES WOULD BE DISQUALIFIED FROM THIS CASE? _____YES _____NO

IF YOUR ANSWER IS YES, YOU MUST FILE A MOTION FOR RECUSAL IN ACCORDANCE WITH SUPREME COURT RULE 21A.

 

11. IS A TRANSCRIPT OF TRIAL COURT PROCEEDINGS NECESSARY FOR THIS APPEAL? _____YES _____NO

IF YOUR ANSWER IS YES, YOU MUST COMPLETE THE TRANSCRIPT ORDER FORM ON PAGE 3 OF NOTICE OF APPEAL.

 

12. CERTIFICATION

I hereby certify that on or before the date below copies of this notice of appeal were served on all parties to the case and were filed with the clerk of the court from which the appeal is taken in accordance with rule 26(2).

 

___________________                                       ____________________________________

Date                                                                          Appealing Party or Counsel

 

 

TRANSCRIPT ORDER FORM

INSTRUCTIONS:

1. If a transcript is necessary for your appeal, you must complete this form.

2. List each portion of the proceedings that must be transcribed for appeal, e.g., entire trial (see Superior Court Administrative Rule 3-1), motion to suppress hearing, jury charge, etc.

3. Provide the requested information about each portion of the proceedings to be transcribed.

4. From the schedule below, determine the amount of deposit required for each portion of the proceedings and the total deposit required for all portions listed. Do not send the deposit to the Supreme Court. You will receive an order from the Supreme Court notifying you of the deadline to pay the trial court the amount of the deposit. Failure to pay the deposit by the deadline may result in the dismissal of your appeal.

LIST EACH PORTION OF CASE PROCEEDINGS TO BE TRANSCRIBED.
DATE OF HEARING TYPE OF HEARING LENGTH OF HEARING NAME OF JUDGE RECORDING OR NAME OF REPORTER DEPOSIT
           
           

 

           

 

           

 

           

 

           

 

          TOTAL DEPOSIT

 

SCHEDULE OF DEPOSIT AMOUNTS

Type of Proceeding Deposit Amount
Hearing one hour or less $ 175
Hearing or trial up to day $ 450
Hearing or trial of more than day $ 900/day

NOTE: The deposit is an estimate of the transcript cost. After the transcript has been completed, you may be required to pay an additional amount if the final cost of the transcript exceeds the deposit. Any amount paid as a deposit in excess of the final cost will be refunded.

 

APPENDIX M

Amend the Rule 7 notice of appeal form for Rule 7 appeals other than non-discretionary appeals as follows:

NEW HAMPSHIRE SUPREME COURT

NOTICE OF APPEAL

RULE 7 DISCRETIONARY APPEAL

1. COMPLETE CASE TITLE IN TRIAL COURT OR AGENCY

 

 

 

 

2. COURT OR AGENCY APPEALING FROM INCLUDING NAME OF JUDGES AND DOCKET NUMBERS

 

 

3A. NAME AND ADDRESS OF APPEALING PARTY

 

 

 

 

 

 

 

 

 

3B. NAME, FIRM NAME, ADDRESS AND TELEPHONE NUMBER OF APPEALING PARTY'S COUNSEL

 

 

 

 

 

 

 

 

 

 

 

 

 

4A. NAME AND ADDRESS OF OPPOSING PARTY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4B. NAME, FIRM NAME, ADDRESS AND TELEPHONE NUMBER OF OPPOSING PARTY'S COUNSEL
5. DATE OF CLERK’S NOTICE OF DECISION OR SENTENCING:

DATE OF CLERK'S NOTICE OF DECISION ON POST-TRIAL MOTION, IF ANY:

 

 

 

6. CRIMINAL CASES: DEFENDANT’S SENTENCE AND BAIL STATUS

 

7. NAMES OF ALL OTHER PARTIES AND COUNSEL IN TRIAL COURT OR AGENCY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

8. IS ANY PART OF CASE CONFIDENTIAL? IF SO, CITE AUTHORITY

 

 

 

9. IF ANY PARTY IS A CORPORATION, ATTACH A LIST OF THE NAMES OF PARENT, SUBSIDIARIES AND AFFILIATES

 

1. 10. DO YOU KNOW OF ANY REASON THAT ONE OR MORE OF THE SUPREME COURT JUSTICES WOULD BE DISQUALIFIED FROM THIS CASE? _____YES _____NO

IF YOUR ANSWER IS YES, YOU MUST FILE A MOTION FOR RECUSAL IN ACCORDANCE WITH SUPREME COURT RULE 21A.

 

11. NATURE OF CASE AND RESULT (limit two pages double-spaced):

12. ISSUES ON APPEAL (limit eight pages double spaced):

The New Hampshire Supreme Court reviews each notice of appeal and decides, in its discretion, whether to accept the case, or some issues in the case, for full appellate review. The following acceptance criteria, while neither controlling nor fully describing the court’s discretion, indicate the character of the reasons that will be considered.

1. The case raises a question of first impression, a novel question of law, an issue of broad public interest, an important state or federal constitutional matter, or an issue on which there are conflicting decisions in New Hampshire courts.

2. The decision below conflicts with a statute or with prior decisions of this court.

3. The decision below is erroneous, illegal, unreasonable or was an unsustainable exercise of discretion.

Separately number each issue you are appealing and for each issue: (a) state the issue; and (b) explain why the acceptance criteria listed above support acceptance of that issue.

 

13. ATTACHMENTS

Attach to this notice of appeal the following documents in order: (1) a copy of the trial court or agency decision or order from which you are appealing; (2) the clerk’s notice of the decision below; (3) any court or agency order deciding a timely post-trial motion (in agency appeals also attach your motion for rehearing); (4) the clerk’s notice of any order deciding a timely post-trial motion.

Do not attach any other documents to this notice of appeal. Any other documents you wish to submit must be included in a separately bound Appendix, which must have a table of contents on the cover and consecutively numbered pages.

 

14. CERTIFICATIONS

I hereby certify that every issue specifically raised has been presented to the court/agency below and has been properly preserved for appellate review by a contemporaneous objection or, where appropriate, by a properly filed pleading.

 

_________________________________

Appealing Party or Counsel

 

I hereby certify that on or before the date below copies of this notice of appeal have been served on all parties to the case and have been filed with the clerk of the court/agency from which the appeal is taken in accordance with Rule 26(2).

___________________ _________________________________

Date Appealing Party or Counsel