Opinion
September 7, 2005
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 3 on a temporary basis as set forth in Appendix A; amendments to Supreme Court Rule 49(I) as set forth in Appendix B; amendments to Supreme Court Rule 51B on a temporary basis as set forth in Appendix C; and adoption on a temporary basis of Supreme Court Rule 57 as set forth in Appendix D. The temporary amendments in Appendices A and C shall take effect on October 15, 2005; the amendments in Appendix B shall take effect immediately; and the temporary amendments in Appendix D shall take effect on January 1, 2006. The temporary amendments set forth in Appendices A, C, and D shall be referred to the Advisory Committee on Rules for consideration of whether they should be adopted on a permanent basis.
APPENDIX A
Amend Supreme Court Rule 3 on a temporary basis by amending the definition of "mandatory appeal" to add a new subsection (7), so that said definition shall state as follows:
"Mandatory appeal": A mandatory appeal shall be accepted by the supreme court for review on the merits. A mandatory appeal is an appeal filed by the State pursuant to RSA 606:10, or an appeal from a final decision on the merits issued by a superior court, district court, probate court, or family division court, that is in compliance with these rules, 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;
(6) an appeal from a final decision on the merits issued in a probation revocation proceeding; and
(7) an appeal from a final decision on the merits issued in a landlord/tenant action filed under RSA chapter 540 or in a possessory action filed under RSA chapter 540.
Comment
The amendment to this rule that added paragraph (7) above shall apply to any appeal of a landlord-tenant or possessory action under RSA chapter 540 in which the notice of appeal is docketed in the supreme court on or after October 15, 2005.
APPENDIX B
Amend Supreme Court Rule 49(I)(D) and (I)(G) by increasing those two fees from $200.00 to $225.00, so that Rule 49(I) shall state as follows:
(I) Fees
(A) Entry of Appeal $125.00 (B) Petition for Original Jurisdiction (1) Original petition for writ of habeas corpus $0 (No fee) (2) All other petitions for original jurisdiction $125.00 (C) (1) Certification of Record to Federal Courts $ 75.00 (2) Other Certifications and Certified Copies $5.00 plus $.50/page (D) Bar Examination Fee $225.00 (E) Character and Fitness Investigation Fee $125.00 (1) For Admission By Examination (2) For Admission Without Examination $500.00 (F) Certificate of Admission $5.00 (G) Entry of Motion for Admission to Bar Without Examination $225.00APPENDIX C
Amend Supreme Court Rule 51B on a temporary basis by deleting said section B and replacing it with the following:
B. Appointment of Advisory Committee on Rules
(1) There shall be an Advisory Committee on Rules, which shall be composed of fourteen members as follows:
(a) One judge from each of the following courts shall be appointed by the supreme court: district court, probate court, superior court, and supreme court.
(b) Two attorneys shall be appointed by the supreme court.
(c) Three lay persons shall be appointed by the supreme court.
(d) One member shall be appointed by the Governor.
(e) One member of the senate shall be appointed by the president of the senate.
(f) One member of the house shall be appointed by the speaker of the house.
(g) One clerk of court shall be appointed by the supreme court.
(h) One member of the New Hampshire Bar Association Board of Governors shall be appointed by the president of the New Hampshire Bar Association.
(2) Appointments by the supreme court shall, where possible, be made from the Committee on Judicial Conduct, the Committee on Professional Conduct, the New Hampshire Bar Association's Committees on Civil Procedure, Evidence and Ethics, and such other committees as may be either studying or enforcing rules for the administration of justice. All such committees shall channel recommended changes through the Advisory Committee on Rules and shall serve as its sub-committees for specific areas of rule-making.
(3) A vacancy in the office of the committee shall occur
(a) when a member ceases to be a member by resignation or otherwise;
(b) when a judge ceases to hold the office which he or she held at the time of selection;
(c) when a lawyer ceases to be admitted to practice in the courts of this State or is appointed to a judicial office;
(d) when a lay person becomes a lawyer or a judge;
(e) when a legislative member ceases to be a member of the general court;
(f) when a New Hampshire Bar Association Board of Governors member ceases to be a member of the Board of Governors.
(4) Members appointed by the Governor, the president of the senate, the speaker of the house, and the president of the New Hampshire Bar Association shall serve at the pleasure of the appointing authority.
(5) The secretary of the committee shall be the clerk of the supreme court or any other person designated by the supreme court.
APPENDIX D
Adopt Supreme Court Rule 57 on a temporary basis as follows:
RULE 57. CUSTODY AND DISPOSAL OF EXHIBITS IN TRIAL COURTS
During the time a case is pending in the trial court, all exhibits submitted at trial, hearing or other proceeding shall be maintained by the court, except that the court may order exhibits requiring special security handling (firearms, drugs, other contraband, etc.) be maintained in the custody of a law enforcement agency or other appropriate custodian.
Upon the final conclusion of a case in the trial court, exhibits will be held at the court until such time as the appeal period has expired. At that time, the clerk shall notify the parties in writing that they have thirty (30) days from the date of said notice to retrieve the exhibits from the court. The notice shall indicate that if the exhibits are not retrieved within that time, the clerk will dispose of them in such manner as the clerk deems appropriate, which may include destruction of same. If the exhibits are not retrieved by the time specified in the notice, the clerk shall dispose of the exhibits by destruction or in some other appropriate manner.
If an appeal is filed, the exhibits shall remain in the custody of the trial court pending resolution of the appeal unless the supreme court orders that the exhibits be transferred for purpose of the appeal. Upon receipt of the mandate from the supreme court, and if no further proceedings are required, the trial court clerk shall follow the procedure set forth in the preceding paragraph to notify the parties that exhibits may be disposed of if they are not retrieved within thirty (30) days.
The court, in its discretion, may refrain from disposing of an exhibit if it is deemed to have some intrinsic, historical or other value of significance.
In criminal cases, the State and the defense will be notified to retrieve the exhibits in the manner described above. If the exhibits are not retrieved within the period specified in the notice, a show cause hearing shall be scheduled to determine why the exhibits have not been retrieved. Following the show cause hearing, the court may order the exhibits destroyed or disposed of in some other appropriate manner.
Nothing in this rule shall be construed to conflict with the procedures established in RSA 595-A:6 or any other general or special law providing for the preservation, disposal, forfeiture or destruction of particular types of property.