THE STATE OF NEW HAMPSHIRE
SUPREME COURT OF NEW HAMPSHIRE
O R D E R
Pursuant to Part II, Article 73-a of the New Hampshire Constitution and Supreme Court Rule 51, the Supreme Court of New Hampshire approves the repeal, on a temporary basis, of Supreme Court Rule 12-D(4) and adoption of technical amendments to Supreme Court Rule 12-D(1)(c), 12-D(3), and 12-D(6), all as set forth in Appendix A; adoption of an amendment, on a temporary basis, to Supreme Court Rule 32-A as set forth in Appendix B; adoption of a technical amendment to Supreme Court Rule 39(8) as set forth in Appendix C; adoption of a technical amendment to Supreme Court Rule 42(2) as set forth in Appendix D; and adoption of an amendment, on a temporary basis, to Supreme Court Rule 42(5)(l) as set forth in Appendix E. These amendments shall take effect immediately, and the temporary amendments shall be referred to the Advisory Committee on Rules for consideration of whether they should be adopted on a permanent basis.
June 23, 2004
Eileen Fox, Clerk
Supreme Court of New Hampshire
Amend Supreme Court Rule 12-D by repealing section (4), on a temporary basis, and by amending sections (1)(c), (3) and (6) so that said rule, as amended, would provide 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.
(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.
Amend Supreme Court Rule 32-A, on a temporary basis, by amending sections (1) and (2) so that said rule, as amended, shall provide as follows:
RULE 32-A. COUNSEL IN GUARDIANSHIP AND INVOLUNTARY ADMISSION CASES.
(1) Whether retained by the defendant or appointed by a lower court, trial counsel in a guardianship case commenced by the filing of a petition pursuant to RSA 464-A:4 or RSA 464-A:12 or in an involuntary admission case commenced by the filing of a petition pursuant to RSA 135-C:36 shall be responsible for representing the defendant in the supreme court unless the supreme court relieves counsel from this responsibility for good cause shown. When the defendant clearly indicates to counsel a desire to appeal, counsel shall be responsible for the filing of a notice of appeal. Provided, however, that if counsel concludes that the appeal is frivolous, counsel must first attempt to persuade the defendant not to appeal. If, however, the defendant insists on appealing, counsel shall file the notice of appeal, setting forth therein all arguable issues. If counsel is thereafter ordered to file a brief, counsel shall examine the record and again determine whether any nonfrivolous arguments exist. If counsel concludes that the appeal is frivolous, counsel shall again advise the defendant to withdraw the appeal. If the defendant decides not to withdraw the appeal, counsel shall file a brief that argues the defendant's case as well as possible. In such a case, the assertion of a frivolous issue before the court shall not constitute a violation of New Hampshire Rule of Professional Conduct 3.1. However, in no case shall counsel deceive or mislead the court, or deliberately omit facts or authority that directly contradict counsel's arguments. Cf. State v. Cigic, 138 N.H. 313, 318 (1994) (explaining scope of exception to Professional Conduct Rule 3.1 for asserting frivolous issues in criminal appeals).
(2) A motion to withdraw as counsel on appeal in a guardianship case commenced by the filing of a petition pursuant to RSA 464-A:4 or RSA 464-A:12 or in an involuntary admission case commenced by the filing of a petition pursuant to RSA 135-C:36 must state reasons that would warrant the grant of leave to withdraw. Absent a showing of exceptional circumstances, the motion must be accompanied by a showing that new counsel has been appointed by the trial court or retained to represent the defendant on appeal.
(3) Trial counsel shall continue to participate until and unless the motion to withdraw is approved by the supreme court.
(4) Indigent cases appealed to the supreme court must be accompanied by petitions for either initial assignment or continued assignment of counsel together with a current financial affidavit or a photocopy of same.
Amend Supreme Court Rule 39(8) by deleting subsection (8) and replacing it with the following:
(8) Annual Report
On or before December 31 of each year, the committee shall prepare a report summarizing its activities during the preceding year. Upon approval of the report by the committee, the committee shall file a copy of the report with the chief justice of the supreme court and shall make copies of the report available to the public.
Amend Supreme Court Rule 42(2) by deleting section (2) and replacing it with the following:
(2) There shall be two (2) complete examinations annually to be given at the Supreme Court Building in Concord or such other place as may be determined by the court. The examinations shall be in such form and length, and shall cover such subjects as the board of bar examiners may determine. One examination shall be held on the last Wednesday of February and the preceding day; and the second examination shall be held on the last Wednesday of July and the preceding day.
Amend Supreme Court Rule 42(5)(l), on a temporary basis, by deleting subsection (5)(l) and replacing it with the following:
(l) The fee for the character and fitness investigation shall be in such amount as the supreme court shall from time to time determine. This sum shall be paid to the New Hampshire Supreme Court Character and Fitness Committee in addition to the fee paid to the clerk of the supreme court for the taking of the examination for admission to practice or for the filing of the motion for admission to practice without examination. Both fees shall be nonrefundable; provided, however, that if an application for admission on motion pursuant to Rule 42(10), 42(11), or 42(12) is denied by the court prior to the commencement of the character and fitness investigation by the Character and Fitness Committee, then one-half of the character and fitness investigation fee shall be refunded.