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See You In Court

By: Jason Reimers, Esq.

If anyone threatens you with the old cliché, “I’ll see you in court!,” you might respond, “Which court?” Even in New Hampshire there are many different courts, and not all of them involve a judge in a black robe.

In a broad sense of the word, a “court” is any place where a decision-maker decides whether legally sufficient evidence has been presented to prove that one party has violated a duty to, or damaged, the other party in a way for which the law provides a remedy.   For example, in a criminal case the court must decide whether the prosecutor has proven beyond a reasonable doubt that someone has committed a crime. In a civil case, a wrongful act such as negligence or a breach of contract must be proven by a preponderance of the evidence, which is a lesser standard.

New Hampshire has three types of state courts. There are the recently established Circuit Courts, which include the District Division, Probate Division, and Family Division. Interestingly, not all three divisions are always under the same roof. For example, the 8th Circuit’s District and Family Divisions are in Jaffrey while the Probate Division is in Keene.

In addition to the Circuit Courts, New Hampshire also has a Superior Court in each county (two in Hillsborough County), and a Supreme Court in Concord. I practice land use and environmental law, so I will focus on the courts to which my practice most often takes me.

By and large, land use and environmental law is practiced in state courts rather than federal courts, with one exception being cases that involve federal environmental statutes such as the Endangered Species Act. New Hampshire does have one federal court, and that court is in Concord, but I want to focus on New Hampshire state courts.

Trials like you see on television happen in Superior Court. In some trials, there is a jury, and in some there is not, though all trials have a judge in the courtroom. When there is no jury, and the judge makes the decision, it is called a “bench trial.” The term “bench” refers to the raised platform where the judge sits.

New Hampshire, being a small state, has only one appellate court—the Supreme Court. The term “appellate” refers to appeal, which is what you can usually do if you lose at trial and believe the trial court made a reversible legal error. If you believe the Superior Court decision was unlawful or unsupported by the evidence, you appeal directly to the Supreme Court. The Supreme Court often decides cases after hearing oral arguments from the parties or the parties’ attorneys.

All court proceedings (with a few exceptions) are open to the public. Go watch a trial in Superior Court or an oral argument at the Supreme Court in Concord. There is plenty of seating, and too often the seats are empty.

Besides what we normally think of as courts, there are many other venues in which legal decisions are made, and for all intents and purposes, these venues are also courts. There is also the Site Evaluation Committee (SEC) that makes decisions on the siting of energy facilities. Proposed wind farms—such as Antrim Wind—have kept the Site Evaluation Committee busy the past few years. Sooner or later the SEC is likely to decide on the Northern Pass proposal. Decisions of the SEC can be appealed to the NH Supreme Court.

There is also the Board of Land and Tax Appeals (BTLA) that hears a variety of matters, including eminent domain, which is the State’s power to take private land for public use. You are more likely, though, to find yourself at the BTLA appealing the town’s denial of your request for a property tax abatement.

There are also four Environmental Councils that review decisions made by the Department of Environmental Services. These are the Wetlands Council, Water Council, Air Resources Council, and Waste Management Council. By far the busiest of these councils is the Wetlands Council. The Wetlands Council is where you can appeal if, for example, DES denies your application for a dock, or if you are aggrieved by the issuance of a permit to your neighbor. If you lose at the Wetlands Council, you can appeal to the Supreme Court.

Let’s not forget the zoning boards and planning boards in your town. They, too, are courts. They make local land use decisions that can be appealed to the Superior Court, and then the Supreme Court.

If it seems that all roads lead to the Supreme Court, you are right. Once the New Hampshire Supreme Court makes its decision, though, it is the end of the road.

If you find yourself in any of these courts, turn off your cell phone, spit out your gum, don’t wear shorts, and stand when you speak to the person who makes the decisions.

Jason Reimers is an attorney with BCM Environmental & Land Law, PLLC, in Concord, and a member of the Board of Directors of the New Hampshire Lakes Association.