Publish NH Supreme Court opinion?

[154NH773]

What is the name of your state (only U.S. law)? New Hampshire (NH)

I brought claims against a local Town zoning board, of due process and equal protection violations under the NH Constitution. (The nature of the claims is unimportant to the question)

The Superior Court, after four years of litigation, denied the claims.

I appealed to the NH Supreme Court, who affirmed the lower court's decision.

I was under the impression that any decision by the full State Supreme Court is a "slip opinion" and would be published in the New Hampshire Reports, and elsewhere. The problem is; the opinion seems to have been issued as an order, and has not been published on the Court's website along with its' other decisions, or in the NH Reports.

My questions are: Since the three-page opinion was issued as an "order", does this mean the Court's opinion will not be published in the New Hampshire Reports, and will be unavailable to cite in similar cases? Why is a full Court's decision not published?

I believe the opinion may have some far reaching consequences, and may set precedence in the procedures of local zoning boards, and for that reason pursued the litigation for the last four years. That attempt to clarify the issue seems now to have been a waste of time.

 

[jhlwstdnt]

Is this it?

McKenzie v. Town of Eaton Zoning Bd. of Adjustment, 154 N.H. 773, 917 A.2d 193 (2007)


Neighbor appealed decision of the Zoning Board of Adjustment (ZBA) approving issuance of building permit to landowner to rebuild a storage shed that was a nonconforming use. The Superior Court, Carroll County, Fauver, J., ruled that ordinance that categorized nonconforming use structures destroyed by fire, wind, or other casualty without being rebuilt within a year as abandoned was unconstitutional. ZBA and landowner appealed.

 

[154NH773]

Is this it?
McKenzie v. Town of Eaton Zoning Bd. of Adjustment, 154 N.H. 773, 917 A.2d 193 (2007)

No. That is the underlying zoning appeal. I won that zoning case and the subsequent NH Supreme Court appeal.

It was during the course of the zoning hearings that I claimed a due process and equal protection violation occured. The issues were bifurcated and the zoning appeal was concluded in Jan 2007, while the constitutional violations were decided this year (2009).

Although there is a 3-page opinion issued by the NH Supreme Court on the constitutional violations, they are refered to as an "order" and I do not know if the decision/opinion will be published.

I thought all decisions by a majority of the full 4-justice State Supreme Court were published and were citable (There is an exception if only 3 judges issue a decision, called a 3JX, which is not citable).

I guess my questions is; what is the difference, if any, between an "order" and a "slip opinion", and shouldn't they both be published?


Just as an aside:

The Superior Court, Carroll County, Fauver, J., ruled that ordinance that categorized nonconforming use structures destroyed by fire, wind, or other casualty without being rebuilt within a year as abandoned was unconstitutional.

The actual decision in this underlying case was that the ordinance was not unconstitutional in terminating a destroyed nonconforming use that had not been rebuilt within one-year. I was the neighbor...

 

[154NH773]

Thanks for looking, but I guess I've found the answer to my question.

Rule 20 (2), of the Rules of the Supreme Court of NH states: An order disposing of any case that has been briefed but in which no opinion is issued, whether or not oral argument has been held, shall have no precedential value and shall not be cited in any pleadings or rulings in any court in this state...

Rule 25 (8) The Supreme Court may, after briefing, oral argument (if any), and consideration of the record on appeal, decide a case on the merits, or any question therein, without a statement of reasons,...

The NH Supreme Court website summarizes its conclusion of a case as: The Court then issues a final decision, which may be a brief order, an order with some explanation, or a full written opinion.

So... in my case the Court looked at four years of litigation and blew it off with an order that cannot be cited, rather than an opinion that could be cited.

This has been an eye-opener to me as a pro se litigant. The defendant had admitted that they violated due process, and the Superior Court found the defendant's procedure was "fundamentally unfair", which is the definition of a due process violation in NH. The Court then went on to say that there was no damage from the constitutionally abusive procedure, denied damages, and did not say whether the procedure was in violation of the NH Constitution. The defendant had offered to settle for a substantial amount, but I had turned the offer down because I wanted to establish that the procedure was in violation of the NH Constitution. I thought the Supreme Court would finally settle that question, and all Towns in NH would be barred from following the procedure in question. By issuing an "order" rather than an "opinion," the Court ducked the question and left the issue unresolved. That leaves an inconsistant result, with some Towns following a procedure that is "fundamentally unfair", and other Towns following an opposite procedure that assures fairness. Because of the Court's failure to issue an opinion, that inconsistancy will continue.

 

[154NH773]

Today I entered a motion asking the court to issue an "opinion" having precedential value, on whether the Zoning Board's procedure violated due process. The issue is of interest to any ZBA in the State, and should be resolved.

I don't think they will grant my motion, but what the heck... no harm in asking...

 

[Ronin]

Its not clear what you actually feel you won in the underlying suit. Although there were admitted shortcomings with due process in your towns hearings, this was deeemed to have been harmless in your case, and you were not awarded damages. Deprivation of due process is not by itself an issue unless it causes harm. The courts are not required to, nor should they, address any issues more than required to resolve your case.

If the due process violations were indeed harmful and violated your rights, then the only basis for your appeal of the trial court judgment was that you were entitled to damages. But this does not appear to be the case here, since you were not the property owner. If this had been the case, and the appeals court had reversed the trial court on this issue, that may have been precedent worthy. But the appeals court simply affirmed the trial court and case closed.

Beyond this, appeals courts have a strongly ingrained bias toward pro se litigants, and they will not normally give one iota more than they have to. Much less allow a pro se to set precedent on constitutional matters.

 

[154NH773]

Ronin, thanks for the reply. I agree with what you have said. You seem to have more information on the case than I put in the post, and I wonder if you have been able to find the Court's Order somehow. I didn't try to explain the whole scenario, as it gets pretty complicated.

I prevailed in the underlying zoning case, both at the Superior Court level and the NH Supreme Court. The issue was that the Town had granted a permit to my neighbor to rebuild a destroyed nonconforming shed in my lake view. The permit was illegal because it was issued after the time period had elapsed to rebuild a destroyed nonconforming structure.

I originally prevailed at a zoning board appeal, but when the landowner entered a Motion for Rehearing, the zoning board vacated their previous decision, and held a de novo rehearing. At the de novo hearing they granted the permit.

The issue in the due process claim was; that when the ZBA heard the landowner's Motion for Rehearing, I was not allowed to answer the written motion, and at the hearing, the landowner's attorney was allowed to present verbal argument for 52 minutes, and I was not allowed to rebut that argument.

The issue of whether the procedure was unconstitutional continued as a separate case from the zoning issue, and wasn't heard until a year after the zoning case was decided in my favor.

By the time it finally came to trial, amendments had been added to include an equal protection violation (I wasn't allowed to speak at MY Motion for Rehearing, as the landowner had been allowed at her Motion for Rehearing). I also asked for damages, as the due process violation denied me the opportunity to prevent or mitigate the lengthily and costly litigation, which I claimed could/would have ended for me at the first Motion for Rehearing.

The Superior Court in the due process case found that although the procedure was "fundamentally unfair" damages were not appropriate, because after three years of litigation I had ultimately prevailed in the zoning case. The Court rejected my contention that such a remedy was inadequate because I had to bear the expenses associated with the litigation. The Court said, "No constitutional provision guarantees the instantaneous correction of errors, and the passage of time required for procedural due process does not give rise to a right to damages."

My question to the Supreme Court, on whether an affected person should be allowed to answer or rebut an adverse Motion for Rehearing, went essentially unanswered, and since no opinion was issued, the question is still unresolved. The procedures followed by New Hampshire towns differ substantially, with some towns allowing answers and rebuttal to such a motion, and other towns, such as mine, not allowing any answer or rebuttal.

I would like the NH Supreme Court to take a stand one way or the other, and issue an opinion on the constitutionality of the procedure.

Beyond this, appeals courts have a strongly ingrained bias toward pro se litigants, and they will not normally give one iota more than they have to. Much less allow a pro se to set precedent on constitutional matters.

That seems to be the crux of my problem.

 

[154NH773]

Just as an update;

I filed a Request for the NH Supreme Court to issue an "Opinion", rather than an "Order" regarding the procedural due process of allowing one party to enter a motion in a zoning case without allowing an adverse party the right to answer the motion.

The NH Supreme Court just denied that request, and that is the end of the issue as far as I'm concerned.

The next time a similiar situation arises, the Court will have to address it all over again. So, four years of litigation resolved nothing.

 

[nojusticeinnh]

Order vs. Opinion from NH Supreme Court

Last week I received an "order" ruling against my appeal of a Superior Court ruling. It was not published on the website as in your case as the order would set a very dangerous precedent to the citizens of New Hampshire and invalidate centuries of common law. I am not an attorney and would like to know if you filed a motion for rehearing and appealed your "order" to the United States Supreme Court? If not, why not?

Thanks!

 

[divona2000]

Last week I received an "order" ruling against my appeal of a Superior Court ruling. It was not published on the website as in your case as the order would set a very dangerous precedent to the citizens of New Hampshire and invalidate centuries of common law. I am not an attorney and would like to know if you filed a motion for rehearing and appealed your "order" to the United States Supreme Court? If not, why not?

Thanks!

nojusticeinnh, you need to start your own thread to ask your question, the one you necroposted to is 2 years old.