2006-291, STATE OF NH v. JOSEPH S. HAAS, JR.

The defendant, Joseph S. Haas, Jr., appeals an order of

for the Appellate Defender Program, as amicus curiae. James T. Brooks, assistant appellate defender, of Concord, on the brief,

Joseph S. Haas, Jr., by brief, pro se.

general, on the memorandum of law), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney

editorial errors in order that corrections may be made before the opinion goes No. 2006-291 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

unconstitutionality. The purpose of the statute is to require that those who are The defendant has not met his burden of establishing the statute’s

Boulders at Strafford v. Town of Strafford, 153 N.H. 633, 64 p. 2 2 (2006). the legislation as violating the rational basis test has the burden of proof. Adjustment, 154 N.H. __, __, 917 A.2d 193, 198 (2007). The party challenging legitimate governmental interest. McKenzie v. Town of Eaton Zoning Bd. of State Constitution requires that legislation be only rationally related to a applied to acquitted defendants like him. The rational basis test under the The defendant argues that the recoupment statute is unconstitutional as

convicted defendants to repay costs of defense). rational basis review to equal protection challenge to statute requiring 7 p. 2 20, 728 (1997); cf. Fuller v. Oregon, 417 U.S. 40, 48-49 (1974) (applying Sec’y of State,154 N.H. 67, 71 (2006); Washington v. Glucksberg, 521 U.S. 702, fundamental right is at issue, we apply the rational basis test. See Akins v. because it applies to acquitted defendants. The As neither the defendant nor the amicus curiae argue that a Constitution and the Fourteenth Amendment of the United States Constitution only, id. at 232-33. State v. Ball, 124 N.H. 226, 231 (1983), and cite federal opinions for guidance We first address the defendant’s claim under the State Constitution,

indigents, or encourages the indigent person to do without counsel.”). may only be found unconstitutional if it arbitrarily discriminates against Commonwealth, 60 S.W.3d 581, 583 (Ky. Ct. App. p. 2 2001) (“A recoupment fee those who have the ability to off-set the State’s expenses.”); Donovan v. State to take reasonable steps to collect on expenditures made on behalf of (Tex. Crim. App. 1993) (“[I]t is not an inherent violation of due process for the the face of due process challenges. See Curry v. Wilson, 853 S.W.2d 40, 46 substantive due process protections of Part I, Article 15 of the New Hampshire part, recoupment statutes have been held to be constitutional – especially in century, however, jurisprudence has developed to the contrary. For the most of the Justices, 121 N.H. 531, 537 (1981). During the intervening quarter prosecution would certainly be unfair and perhaps unconstitutional.” Opinion acquitted to reimburse the State for expenses resulting from the State’s Justices in which we said, “Indeed, to require a defendant who has been his position, the defendant cites dicta from a non-precedential Opinion of the State for the costs of his defense is simple ‘elemental fairness.’” In support of relieving a defendant who has been acquitted from having to reimburse the

The defendant argues that RSA 604-A:9 is unconstitutional, violating the

representation. This appeal followed. to reimburse the State under RSA 604-A:9 ( p. 2 2001) for the costs of his legal p. 3 Constitution under these circumstances. Constitution offers the defendant no greater protection than does the State 3 afford to pay for the legal services they receive from the State. The Federal

the legitimate government interest of recouping costs from defendants who can BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.

constitutions. 521 U.S. at 720, 728. Therefore, we reach the same conclusion under both

condition. nor provided for “proceedings which would determine” the defendant’s financial inquired into “present and future financial resources of the criminal defendant” In conclusion, we hold that the statute bears a rational relationship to

denied, 466 U.S. 907 (1984). Kelleher, 452 N.E.2d 143, 145 (Ill. App. Ct. 1983) (emphasis added), cert.

a rational basis for distinguishing between those convicted and those procedures for recoupment orders, collection and appeal of such orders. defendants – if it so chooses. Fuller, 417 U.S. at 49-50. So, “while Fuller finds protection for a state to distinguish between acquitted and convicted these things. And, Fuller merely held that it is not a violation of equal

Olson, 603 F.2d at 155. By contrast, RSA 604-A:9 does both of

The Kansas statute was found to violate due process because it neither between acquitted and convicted defendants. different result. Olson dealt with a challenge to a Kansas recoupment statute. (10 Cir. 1979), upon which the defendant heavily relies, do not require a th Fuller, cited by the amicus curiae, and Olson v. James, 603 F.2d 150

PROC. CODE ANN. § 26.05 (Vernon Supp. 2006); WIS. STAT. § 977.06 (2005-06). purpose in that it inquires into a defendant’s ability to pay and outlines § 2941.51 (Anderson 2006); S.C. CODE ANN. § 17-3-30 (West 2003); TEX. CRIM. Moreover, the statutory scheme under RSA 604-A:9 is rationally related to this A, § 7 (2003); N.M. STAT. ANN. § 31-16-7 (Michie 2000); OHIO REV. CODE ANN. expended for public defense whether or not the defendant is convicted. CRIM. PROC. ANN. art. 15-148 (Lexis Nexis Supp. 2006); MD. ANN. CODE art. 27- 5/113-3.1 (2006); KY. REV. STAT. ANN. § 31.120 (Michie Supp. 2006); LA. CODE 106 (2006); IDAHO CODE § 19-858 (Michie 2004); 725 ILL. COMP. STAT. ANN. (Supp. 2007); CAL. PENAL CODE § 987.8 (Deering 1998); COLO. REV. STAT. § 21-2-

dozen other states, as well as the federal government, do not distinguish Recoupment statutes like New Hampshire’s are not unusual. At least a

There is nothing illegitimate in the governmental interest in recouping costs financially able to do so, pay for a service that they received from the State.