SB 373-FN – VERSION ADOPTED BY BOTH BODIES
02/19/14 0562s
30Apr2014… 1283h
2014 SESSION
03/04
SENATE BILL 373-FN
AN ACT relative to procedure and jurisdiction of the superior courts.
SPONSORS: Sen. Carson, Dist 14; Sen. Boutin, Dist 16; Sen. Cataldo, Dist 6; Sen. Lasky, Dist?13; Sen. Soucy, Dist 18; Rep. M. Smith, Straf 6; Rep. Rowe, Hills 22
This bill clarifies the jurisdiction of the superior courts and updates references to orders of notice and return dates.
This bill was requested by the judicial branch.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
02/19/14 0562s
30Apr2014… 1283h
14-2695
03/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fourteen
AN ACT relative to procedure and jurisdiction of the superior courts.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Statutory Construction; Petition. Amend RSA 21 by inserting after section 50 the following new section:
21:51 Petition. The word “petition” when used in connection with the equity jurisdiction of the superior court, and referring to a document filed with the court, shall mean complaint, and “petitioner” shall mean plaintiff.
2 Summons. Amend RSA 26:3 to read as follows:
26:3 Procedure on Appeals. All provisions for highway appeals shall apply to the appeals herein provided for, so far as the same are applicable; but service of the [order of notice] summons shall be made upon the county interested in the manner provided by law for service of writs upon a county.
3 Summons. Amend RSA 78-A:13, II to read as follows:
II. Upon the filing of an appeal, the board of tax and land appeals or the court, as the case may be, shall issue [an order of notice] a summons requiring the commissioner to file with the court a certified copy of the record in the proceeding together with such of the evidence introduced before or considered by the commissioner as may be specified by any party in interest as well as such other evidence, so introduced and considered, as the commissioner wishes to specify, together with the originals or copies of all exhibits introduced in evidence before the commissioner.
4 Summons. Amend RSA 120:2 to read as follows:
120:2 Appeal From Award. If the owner is dissatisfied with the award he or she may appeal therefrom to the superior court for the county by petition within 60 days after the filing of such return, and shall give notice of [his] the appeal by giving in hand to, or leaving at the abode of, the United States district attorney for the district of New Hampshire a copy of the petition and [order of notice] summons thereon 14 days at least before the term at which it is to be entered, and the court shall thereupon assess his or her damages by a jury or other method, as the parties may agree.
5 Summons. Amend RSA 120:4 to read as follows:
120:4 Notice of Condemnation. In the taking of lands by the United States for any public purpose, by condemnation proceedings, it shall be sufficient notice to all parties interested, if an attested copy of the petition for such taking and summons or order of notice thereon, made by the court or selectmen petitioned, shall be given in hand to, or left at the last and usual place of abode of, all known interested parties residing in this state, and by a like service on all others, or by sending by registered mail a like copy to the last known post-office address of such known interested party, and by publication in such paper or papers and for such times as the court or selectmen petitioned may order.
6 Summons. Amend RSA 135-E:6 to read as follows:
135-E:6 Petition; Contents. If the multidisciplinary team finds the person meets the definition of a sexually violent predator, the county attorney or attorney general may file a petition within 14 days with the superior court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation. At the time of the filing, and in lieu of the court issuing [an order of notice] a summons, the county attorney or attorney general shall forward a copy of the petition to the person who is the subject of the petition, or to that person’s attorney if one was appointed to represent the person pursuant to RSA 135-E:23. If the county attorney or attorney general does not file a petition within 14 days, and the person is otherwise subject to release, the person shall be released.
7 Summons. Amend RSA 147-A:10, II to read as follows:
II. Within 14 days of seizure of any property, the attorney general shall file a libel in the superior court of the county in which the property was seized, requesting forfeiture of the property. The court shall issue [an order of notice] a summons requiring the state to send by certified mail a copy of the libel to the owner of the property and other persons appearing to have an interest in the property.
8 Summons. Amend RSA 151-H:3, II to read as follows:
II. The court shall immediately issue [an order of notice] a summons and set the matter for hearing not less than 5 days and not more than 14 days after filing of the action. The petition and notice of the hearing shall be served on the licensee, the owner or owners, and the administrator not less than 3 days before the date of the hearing, unless a different period is specified by the court. A receiver may be appointed immediately, on an ex parte basis, if the court renders written findings of fact and conclusions of law that clear and convincing evidence exists, based upon a petition filed by the department with supporting affidavit, that there are legally sufficient grounds for the appointment of a receiver in that an immediate appointment is necessary to prevent immediate, irreparable harm to the residents, and that there are no adequate remedies available at law. The licensee, the owner or owners, and the administrator shall be given prior notice of the ex parte hearing unless such notice is impossible given exigent circumstances for the health, safety, or welfare of the residents or if, after exercising all reasonable means, the department is unable to locate the licensee, the owner or owners, and or the administrator. If a receiver is appointed on an ex parte basis, service shall be made on the responding parties and a hearing held within 5 days of the date the order was issued.
9 Summons. Amend RSA 231:39 to read as follows:
231:39 Notice. Whenever a petition for the laying out or altering of a highway, or appealing from the decision of selectmen, is filed in superior court the clerk shall issue [an order of notice] a summons, with a copy of the petition, [returnable at the next return day of court] to be served by the date specified by the court on the summons, and the petitioners shall cause a certified copy of the same to be given to, or left at the places of abode of, one of the selectmen and the town clerk of each town through which such highway may pass, [at least 14 days before such return day] by the service date specified on the summons, and such other notice as the court shall order.
10 Summons. Amend RSA 231:48 to read as follows:
231:48 Appeal From Discontinuance; Damages. Any person or other town aggrieved by the vote of a town to discontinue any highway, or discontinue any highway as an open highway and made subject to gates and bars, may appeal therefrom to the superior court for the county in which such highway is situate by petition within 6 months after the town has voted such discontinuance and not thereafter. Whenever any such petition is filed in the superior court the clerk shall issue [an order of notice] a summons, with a copy of the petition, [returnable at the next return day of court or at any special return day ordered by the court] to be served by the date specified by the court on the summons, and the petitioner shall cause a certified copy of the same to be given to or left at the places of abode of one of the selectmen and the town clerk of each town in which the highway proposed to be discontinued is located, and give notice to the owners of land abutting on such highway in the same manner as required of selectmen in laying out highways, [at least 14 days before such return day] by the service date specified on the summons, and such other notice as the court shall order. Any person or town so notified may become a party to the proceedings by entering an appearance in such proceedings with the clerk of the superior court; and no person or town so notified shall after being so notified institute any additional appeal from the vote to discontinue such highway. Except as above provided, like proceedings shall be had on such petition as in the case of appeals in the laying out of class IV, V and VI highways, and if the county commissioners report for such discontinuance they shall assess the damages sustained by any person within the town in which the highway has been discontinued.
11 Summons. Amend RSA 318-B:17-b, IV(c) to read as follows:
(c) The court shall issue [orders of notice] summonses to all persons who have a recorded interest or claim an equitable interest in said items or property interests seized under this chapter and shall schedule a hearing on the petition to be held within 90 days of the [return] date [on said petition] specified by the court on the summonses.
12 Summons. Amend RSA 354-A:22, II to read as follows:
II. Such proceeding shall be initiated by the filing of a petition in such court, together with a written transcript of the record upon the hearing before the commission in the case of a petition for judicial review, and issuance and service of [an order of notice] a summons as in proceedings in equity. The court shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such transcript an order or decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the commission, with full power to issue injunctions against any respondent and to punish for contempt of court. No objection that has not been urged before the commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. In petitions to enforce commission orders, the court may, in its discretion, award the complaining party reasonable attorney’s fees and costs.
13 Date. Amend RSA 356-A:19, I(b) to read as follows:
(b) The plaintiff’s affidavit of compliance with this section is filed in the case on or before the [return day of the process, if any] date specified by the court on the summons, or within such further time as the court allows.
14 Date. Amend RSA 356-B:68, I(b) to read as follows:
(b) The plaintiff’s affidavit of compliance with this section is filed in the case on or before the [return day of the process, if any] date specified by the court on the summons, or within such further time as the court allows.
15 Date. Amend RSA 361-A:2, II(b)(2) to read as follows:
(2) The plaintiff’s affidavit of compliance with this paragraph is filed in the case on or before the [return day of the process] date specified by the court on the summons, if any, or within such further time as the court allows.
16 Summons. Amend RSA 367:10 to read as follows:
367:10 Notice of Petition. Any justice of the court, in term time or vacation, upon application by the petitioner and without notice to other parties, shall [order such notice to be given of the petition as he deems reasonable, returnable at the next regular session of the court for which it is practicable to give notice] issue a summons to be served by the date specified by the court on the summons.
17 Summons. Amend RSA 367:11 to read as follows:
367:11 Reference. [At the session to which the order of notice is made returnable] On the service date specified by the court on the summons, if it appears to the court that sufficient notice of the petition has been given and that all preliminary steps have been taken, and the capital stock has been subscribed by responsible parties, in good faith, with the intention of building the road, and if no sufficient objection is made, the court shall refer the petition to the department of transportation or to a board of 3 referees appointed by the court, as they shall deem best, to find and report the facts bearing upon the petition.
18 Summons. Amend RSA 367:29 to read as follows:
367:29 Hearing. At the time and place so appointed such justice, or some other justice of the court, shall attend, and, if it appears that the [order of notice] summons has been complied with, shall proceed with the hearing.
19 Summons. Amend RSA 372:13 to read as follows:
372:13 Appeal. If either party is aggrieved by the award of the department of transportation, such party, within 60 days after the report is filed in the office of the secretary of state, and not after, may file in the office of the clerk of the superior court of the county in which the land is situated a petition to have the landowner’s damages assessed by a jury, upon which petition the clerk shall issue [an order of notice returnable to the court] a summons; and, after the [order has been complied with] summons has been served, the court shall assess such damages by a jury, unless the parties agree upon a different method.
20 Summons. Amend RSA 388:2 to read as follows:
388:2 Notice; Reference. When any such petition shall be filed, the clerk shall issue [an order of notice] a summons providing for notice by publication to all parties interested and providing for such other notice as the court may require[, returnable in conformity with the provisions of RSA?496:2]. If no sufficient objection to such petition shall be made within 30 days after the [return day thereof] the service date specified by the court on the summons, the court shall thereupon refer such petition to the bank commissioner or to a master appointed by the court.
21 Date. Amend RSA 397-A:5, IV(b) to read as follows:
(b) The plaintiff’s affidavit of compliance with this paragraph is filed in the case on or before the [return day of the process] date specified by the court on the summons, if any, or within such further time as the court allows.
22 Date. Amend RSA 397-B:4, II(b) to read as follows:
(b) The plaintiff’s affidavit of compliance with this paragraph is filed in the case on or before the [return day of the process] date specified by the court on the summons, if any, or within such further time as the court allows.
23 Date. Amend RSA 399-A:3, III(b) to read as follows:
(b) The plaintiff’s affidavit of compliance with this paragraph is filed in the case on or before the [return day of the process] date specified by the court on the summons, if any, or within such further time as the court allows.
24 Date. Amend RSA 399-D:5, III(b) to read as follows:
(b) The plaintiff’s affidavit of compliance with this paragraph is filed in the case on or before the [return day of the process] date specified by the court on the summons or within such further time as the court allows.
25 Date. Amend RSA 399-G:5, III(b) to read as follows:
(b) The plaintiff’s affidavit of compliance with this paragraph is filed in the case on or before the [return day of the process] date specified by the court on the summons, if any, or within such further time as the court allows.
26 Summons. Amend RSA 400-A:34, III to read as follows:
III. Such petition shall be entitled against the insurance commissioner, and all [orders of notice] summonses therein shall be served upon the insurance commissioner. In any such action, the superior court, after hearing, shall make such order as justice may require and may order the insurance commissioner to credit the petitioner in any tax assessment thereafter made against the petitioner with any amount found to have been illegally assessed against and paid by the petitioner, with interest thereon at such rate as the court may deem just.
27 Date. Amend RSA 402-C:35, IV-V to read as follows:
IV. Notice. The liquidator shall give notice of the order to show cause by publication if so directed by the court and by first class mail to each member liable thereunder mailed at least 20 days before the [return day of] date specified by the court in the order to show cause to his or her last known address as it appears on the records of the insurer. Failure of the member or subscriber to receive the notice of the assessment or of the order, within the time specified therein or at all, shall be no defense in any proceeding to collect the assessment.
V. Orders and Hearings.
(a) If a member does not appear and serve duly verified objections upon the liquidator upon the [return day of] date specified by the court in the order to show cause under paragraph III, the court shall make an order adjudging the member liable for the amount of the assessment against him or her and other indebtedness, pursuant to paragraph III, together with costs, and the liquidator shall have a judgment against the member therefor.
(b) If on [such return day] the date specified by the court in the order to show cause, the member appears and serves duly verified objections upon the liquidator, the court may hear and determine the matter or may appoint a referee to hear it and make such order as the facts warrant. Any order made by a referee under this paragraph shall have the same force and effect as if it were a judgment of the court, subject to review by the court upon application within 30 days.
28 Date. Amend RSA 421-B:30, VII(b) to read as follows:
(b) The plaintiff’s affidavit of compliance with this paragraph is filed in the case on or before the [return day of the process] date specified by the court on the summons, if any, or within such further time as the court allows.
29 Date. Amend RSA 421-B:30, VIII(b) to read as follows:
(b) The plaintiff’s affidavit of compliance with this paragraph is filed in the case on or before the [return day of the process] date specified by the court on the summons, if any, or within such further time as the court allows.
30 Summons. Amend RSA 485-A:40, VII to read as follows:
VII. Upon the filing of an appeal, the clerk of court shall issue [an order of notice] a summons requiring a certified copy of the record appealed from to be filed with the court. The filing of an appeal shall not suspend the decision appealed from, unless the court, on application and for good cause shown, shall grant a restraining order.
31 Superior Court; Jurisdiction. Amend RSA 491:7 to read as follows:
491:7 Jurisdiction. The superior court shall take cognizance of civil actions and pleas, real, personal, and mixed, according to the course of the common law, except such actions as are required to be brought in the family division under RSA 490-D, district courts under RSA 502-A, or the probate courts under RSA 547; of writs of mandamus and quo warranto and of proceedings in relation thereto; [of actions for support for children of unwed parents;] of petition and appeals relating to highways and property taken therefor and for other public use; of actions commenced in the probate or district courts where a right to jury trial is guaranteed by the constitution; of actions commenced in a district court which are transferable by statute to the superior court; of suits in equity under RSA 498:1; [of petitions of divorce, nullity of marriage, alimony, custody of children and allowance to wife from husband’s property for support of herself and children;] of petitions for new trials; of petitions for the redemption and foreclosure of mortgages; of all other proceedings and matters to be entered in, or heard at, said court by special provisions of law; and of all other proceedings and matters cognizable therein for which other special provision is not made.
32 Date. Amend RSA 491:24, I to read as follows:
I. Whenever a municipal official or individual member of a municipal board or agency, who is subject to good faith immunity under the provisions of RSA 31:104 or the common law of New?Hampshire, is sued personally for money damages and the plaintiff alleges injury or damage resulting from action taken in bad faith or with malice on the part of the official or member when acting in his or her official capacity, the superior court shall hold a preliminary hearing within 90 days of the [return date of the action] service date specified by the court on the summons.
33 Qualifications of Jurors. Amend RSA 500-A:7-a, V to read as follows:
V. A juror shall not have been convicted of any felony [which] unless the conviction has [not] been annulled [or which is not eligible for annulment under New Hampshire law].
34 Date. Amend RSA 510:1 to read as follows:
510:1 Time; Where Returnable. All original writs and writs of mesne process shall be served [14 days before the return day to which they are returnable] by the service date specified by the court on the summons, and shall be returnable to the superior court for Rockingham County at Brentwood; Strafford County at Dover; Belknap County at Laconia; Carroll County at Ossipee; Merrimack County at Concord; Hillsborough County at either Manchester or Nashua, as is appropriate; Cheshire County at Keene; Sullivan County at Newport; Grafton County at North Haverhill in the town of Haverhill; and Coos County at Lancaster.
35 Date. Amend RSA 512:44 to read as follows:
512:44 On Settlement Before [Return Day] Service Date. In all cases where suit is brought and the personal earnings of the defendant are held under the trustee process, and a settlement of the action is made, or tendered, by the defendant or by some other person in his or her behalf prior to the [return day of the writ] service date specified by the court on the summons, the following items of costs, and no more, shall be chargeable to the defendant: The fees of the officer serving the writ as fixed by law and $1 for the writ.
36 Summons. Amend RSA 514:15 to read as follows:
514:15 Orders. Any application, motion, complaint, libel, or petition, for any cause of action, may be filed in the clerk’s office, in vacation, and [an order of notice] a summons issued thereon under the rules of the court.
37 Date. Amend RSA 515:1 to read as follows:
515:1 Amount. At any time before the [return day of the writ] service date specified by the court on the summons, the defendant may tender to the attorney who brought the action the amount of the debt and costs, and such tender shall be a bar to any further proceedings in the case.
38 Date. Amend RSA 519-B:3, II(b) to read as follows:
(b) Within 14 days following the [return date] service date specified by the court on the summons, the chief justice shall choose a retired judge, a person with judicial experience, or other qualified person from the list maintained by the chief justice to serve as chairperson of the panel to screen the claim. If at any time a chairperson chosen under this paragraph is unable or unwilling to serve, the chief justice shall appoint a replacement following the procedure in this paragraph for the initial appointment of a chairperson. Persons other than retired judges or those with judicial experience may be appointed as chairperson based on appropriate trial experience. If the chief justice appoints as chairperson, a person who is not a retired judge or who does not have judicial experience, each side may make one challenge to the appointment.
39 Date. Amend RSA 519-B:4, II to read as follows:
II. Within 20 days of the [return date] service date specified by the court on the summons, the person or persons accused shall contact the claimant’s counsel and by agreement shall designate a timetable for filing all the relevant medical and provider records necessary to a determination by the panel. If the parties are unable to agree on a timetable within 60 days of the [return date] service date specified by the court on the summons, the claimant shall notify the chairperson of the panel. The chairperson shall then establish a timetable for the filing of all relevant records and reasonable discovery, which shall be filed at least 30 days before any hearing date. The hearing shall be no later than 6 months from the [return date] service date specified by the court on the summons, except when the time period has been extended by the panel chairperson in accordance with this chapter.
40 Date. Amend RSA 519-B:4, VI to read as follows:
VI. All requests for extensions of time under this section shall be made to the panel chairperson. The chairperson may extend any time period for good cause, except that the chairperson may not extend any time period that would result in the hearing being held more than 11 months following the [return date] service date specified by the court on the summons unless good cause is shown.
41 Summons. Amend RSA 535:6 to read as follows:
535:6 Venue. If the land to which the proceedings relate is in different counties the proceedings may be in either, and the [order of notice] summons upon the information or petition shall be that the grantee appear and show cause why the grant should not be decreed forfeited.
42 Committal for Nonpayment. Amend RSA 618:9 to read as follows:
618:9 Committal for Nonpayment; Term. Whenever a person is committed to a county correctional facility in default of payment of a fine imposed by a justice of a [municipal] superior court or a district court, he or she shall be discharged from custody by the superintendent thereof at the expiration of a number of days after the date of his or her commitment equal to one day for each $50 of the fine so imposed. The superintendent shall keep a record of all discharges made under the provisions of this section.
43 Stalking. Amend RSA 633:3-a, III-a to read as follows:
III-a. A person who has been the victim of stalking as defined in this section may seek relief by filing a civil petition in the district court [or the superior court] in the [county or] district where the plaintiff or defendant resides. Upon a showing of stalking by a preponderance of the evidence, the court shall grant such relief as is necessary to bring about a cessation of stalking. The types of relief that may be granted, the procedures and burdens of proof to be applied in such proceedings, the methods of notice, service, and enforcement of such orders, and the penalties for violation thereof shall be the same as those set forth in RSA 173-B.
44 Summons. Amend RSA 633:8, XIII to read as follows:
XIII. The court shall issue [orders of notice] summonses to all persons who have a recorded interest or claim an equitable interest in said items or property interests seized under this section and shall schedule a hearing on the petition to be held within 90 days of the [return date] service date specified by the court on the summons on said petition.
45 Summons. Amend RSA 677:8 to read as follows:
677:8 Filing Certified Record. Upon the filing of an appeal, the clerk of court shall issue [an order of notice] a summons requiring a certified copy of the record appealed from to be filed with the court.
46 Oath. Amend RSA 311:6 to read as follows:
311:6 Oath. Every attorney admitted to practice shall take and subscribe[, in open court,] the oaths to support the constitution of this state and of the United States, and the oath of office in the following form: You solemnly swear or affirm that you will do no falsehood, nor consent that any be done in the court, and if you know of any, that you will give knowledge thereof to the justices of the court, or some of them, that it may be reformed; that you will not wittingly or willingly promote, sue or procure to be sued any false or unlawful suit, nor consent to the same; that you will delay no person for lucre or malice, and will act in the office of an attorney within the court according to the best of your learning and discretion, and with all good fidelity as well to the court as to your client. So help you God or under the pains and penalty of perjury. The supreme court shall have authority to determine by court rule the manner in which the oaths shall be administered.
47 Effective Date.
I. Section 43 of this act shall take effect January 1, 2015.
II. The remainder of this act shall take effect upon its passage.
LBAO
14-2695
12/04/13
SB 373-FN - FISCAL NOTE
AN ACT relative to procedure and jurisdiction of the superior courts.
FISCAL IMPACT:
The Legislative Budget Assistant has determined that this legislation, as introduced, has a total fiscal impact of less than $10,000 in each of the fiscal years 2014 through 2018.