2008-616, STATE OF NH v. RAYMOND K. FOURNIER

This is an interlocutory appeal from an order of the

the defendant. Lisa L. Wolford, public defender, of Concord, on the brief and orally, for

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

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-616 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 22 as prospectively.” RSA 135-E:19. prosecuted by the attorney general. p. 2 this statute who have been convicted of a sexually violent offense, as well as 2008, “applies retroactively to all persons in custody as of the effective date of

violent offense, or attorney general if the case was

involuntarily committed. This chapter, passed in 2006 and effective January 1, psychologists,

that person was last convicted of a sexually notice to the county attorney of the county where to renew the committal order or the amount of time a person may be jurisdiction over the person shall give written

The statute places no limitation on the number of times the State may petition of health and human services and consisting of licensed psychiatrists or committal order for an additional period of up to five years. RSA 135-E:12. request that the multidisciplinary team (MDT), established by the department release. RSA 135-E:3, II. The county attorney or attorney general may then

confinement in New Hampshire, the agency with

incarcerative sentence. RSA 135-E:11, II. The State may petition to renew the person’s anticipated release, or any hearing regarding the person’s possible

171-B. RSA 135-E:2, XII.

determine whether the person is a sexually violent predator.” RSA 135-E:3, III.

see RSA 135-E:3, I, “assess and evaluate the person to

violent offense is to be released from total

Prison for a period of up to five years following the expiration of his This written notice must be provided at least nine months prior to either the

eligible for involuntary admission under RSA chapter 135-C or RSA chapter in a secure facility for long-term control, care, and treatment,” and is not that makes the person likely to engage in acts of sexual violence if not confined

[w]hen a person who has committed a sexually

committed and held at the secure psychiatric unit at the New Hampshire State Pursuant to RSA 135-E:3, II,

violent offense, “[s]uffers from a mental abnormality or personality disorder

A person found to be a sexually violent predator is involuntarily

violent predator is defined as a person who has been convicted of a sexually pursuant to RSA chapter 135-E (Supp. 2008). Under this chapter, a sexually he is eligible to be involuntarily committed as a sexually violent predator Because the defendant had been convicted of a sexually violent offense,

Hampshire State Prison, and was due to be released on June 16, 2008. felonious sexual assault. He was sentenced to five to fifteen years in the New On March 17, 1994, the defendant pled guilty to seven counts of aggravated appendices. In the Matter of Gendron & Plaistek, 157 N.H. 314, 315 (2008). the recognized exceptions to the hearsay rule. RSA 135-E:10, III, IV.

p. 3 by the MDT is inadmissible, as is hearsay evidence unless it falls within one of statutes or rules, do not apply at trial. RSA 135-E:10, I. However, any report 329:26, privileged communications under RSA 330-A:32, and other similar

RSA 135-E:11, I. The rules of evidence, the doctor-patient privilege under RSA

clear and convincing evidence, that the person is a sexually violent predator. Predator” and also schedule a trial within 60 days. the contents of the foregoing Petition that [the defendant] is a Sexually Violent requested that the trial court, “[w]ithin 10 days, find probable cause based on

emergency probable cause hearing, which was held on June 16.

violent predator. RSA 135-E:9, II. The State carries the burden of proving, by that election, the court shall hold a trial to determine if the person is a sexually sixty days of this determination, or if a jury trial is elected, within sixty days of 3 a sexually violent predator pursuant to RSA chapter 135-E. The State

incarcerative sentence expired on June 16, 2008, the State requested an

does not appear that a trial on the merits was scheduled at that time.

require that the county attorney or attorney general respond to the petition.

ten days to make an initial finding of probable cause. RSA 135-E:7, I. Within March 17, 2008, the State petitioned the trial court to certify the defendant as the MDT concluded that the defendant met that definition. Ten days later, on See RSA 135defendant met the definition of a sexually violent predator. On March 7, 2008, Because no hearing was scheduled to occur before the defendant’s

The trial court made an initial finding of probable cause on April 28, 2008. It release. RSA 135-E:3, V (c).

discharge at any time after his commitment. RSA 135-E:14. The court may

such allegation.” RSA 135-E:6. Once a petition is filed, the superior court has person is a sexually violent predator and stating facts sufficient to support days within which to file a petition with the superior court “alleging that the State, in January 2008, an MDT team was assembled to evaluate whether the Consistent with the terms of RSA 135-E:3 and at the request of the

without merit on its face. Id. It may also deny the petition without a hearing, if it determines the petition is findings within six months of receiving notice of the person’s anticipated

A person committed as a sexually violent predator may file a petition for

sexually violent predator, the county attorney or attorney general has fourteen

predator.” RSA 135-E:3, V. The MDT must provide a written report as to its is relevant to the determination of whether such person is a sexually violent medical records, the person’s criminal background, and “any other factor that

If the MDT finds that a person meets the statutory definition of a

institutional history and treatment record, including mental health and The MDT’s assessment and evaluation includes review of the person’s defendant’s motion for reconsideration was denied on July 30, 2008. p. 4 on July 10, 2008, scheduled a trial on the merits for September 2, 2008. The subsequently found probable cause to continue the defendant’s detention, and,

that the defendant had not been prejudiced by the delays. The trial court

person remain in custody and be held in an

trial court ultimately denied the defendant’s motion to dismiss because it found time limits out of liberty interest concerns.” However, despite this finding, the thereby protect his liberty interests” and, thus, “the legislature mandated these violent predator, the court shall order that the

filing of the petition, the court sexually violent predator, within 10 days of the 4

either before or shortly after the person’s incarcerative sentence expires and cause to believe that the person is a sexually

content of the petition that there is probable predator. If the court determines based on the

a petition seeking to have a person declared a

“these time limits guarantee that the Court will reach the merits of the petition mandatory and had not been complied with in this case. It also concluded that words used. 135-E:7, I, and the sixty-day time limit set forth in RSA 135-E:9, II are person named in the petition is a sexually violent

whether probable cause exists to believe that the

When the county attorney or attorney general files

requiring the dismissal of the petition against him?” RSA 135-E:7, I, provides: limits divest the court of authority to act in Mr. Fournier’s case, thereby interlocutory appeal: “Does the court’s failure to comply with mandatory time effectuate its overall purpose and avoid an absurd or unjust result. Id. at 724.

Id. at 723-24. We construe all parts of a statute together to

statute, and, where possible, we apply the plain and ordinary meanings to the order, the trial court concluded that the ten-day time limit set forth in RSA Gubitosi, 157 N.H. 720, 723 (2008). We first examine the language of the as expressed in the words of the statute considered as a whole. State v. statutory interpretation, we are the final arbiter of the intent of the legislature is de novo. In re Juvenile 2007-150, 156 N.H. 800, 801 (2008). In matters of Because this presents a question of statutory interpretation, our review

On August 13, 2008, the trial court approved the following question for

trial on the merits within sixty days of the request for trial. In its July 3, 2008 a probable cause determination within ten days of the filing of the petition, or a failed to comply with the statutory time limits; namely, that there had not been

the trial court no longer had jurisdiction to hear the matter because it had E:7, II. At that time, the defendant moved to dismiss the petition, arguing that the primary purpose of the Act. We disagree. p. 5 was intended to be jurisdictional because such an interpretation would thwart enacting the time limits at issue.” However, it asserts that neither time limit

“a general interest in hastening adjudicative dispositions.” adjudication of a juvenile as a “delinquent” or “child in need of services.”

are substantial, and that the Legislature certainly considered them when

heard within the statutory period.”

mandatory time limits on juvenile adjudicatory hearings under [these statutes] Russell C., 120 N.H. at 263. We concluded that “[t]he prescription of

two types of time limits: those involving a liberty interest and those involving 169-D:13, II (Supp. 1979), which establish the statutory time limits for the In Russell C., we considered RSA 169-B:14, II (Supp. 1979) and RSA interests of a person against whom the State has filed a petition under the Act unwilling to treat the time limit as jurisdictional.” Id. at 616. dispositions for the benefit of all parties involved, however, we have been prescribed time limits out of a general interest in hastening adjudicative

personal jurisdiction over a defendant is lost, absent waiver, if the case is not concerns, has mandated time limits for holding hearings, we have held that 138 N.H. 612, 615-16 (1994). “Where the legislature, out of liberty interest

When interpreting the goals of a statute, we have distinguished between

elected, 60 days after the election of a jury trial, the court RSA 135-E:9, II are mandatory. The State further concedes that “the liberty shown prejudice as a result of the statutory violation. Id. consideration of the statutory goals and whether the party seeking relief has McCarthy, 152 N.H. at 645. Our inquiry focuses upon two factors: to be enforced, we must determine the appropriate mode of enforcement. Where the legislature has not provided how its mandatory time limits are

initial determination of probable cause, or, in cases where a jury trial has been The State concedes that the time limits set forth in RSA 135-E:7, I, and

where the purpose of the statute is to protect private rights.” Id. mandatory. In re Russell C., 120 N.H. 260, 264 (1980). “This is especially so significant as indicating that the legislature intended the statute to be McCarthy v. Wheeler, 152 N.H. 643, 645 (2005). Although not controlling, it is The use of the word “shall” is generally regarded as a command.

added.) to determine whether the person is a sexually violent predator.” (Emphasis

(Emphasis added.) RSA 135-E:9, II provides: “Within 60 days after the court’s

in accordance with this chapter. appropriate secure facility for further proceedings procedure leading up to trial.

p. 6 advance of the person’s anticipated release, or to maintain such an expedited sentence, as there would be no need to begin the process nine months in process were intended to be drawn out beyond the person’s incarcerative

and other time limits within the chapter would be rendered meaningless if the

receiving notice of a person’s anticipated release, RSA 135-E:3, V (c). These multidisciplinary team complete its written report within six months of anticipated release, RSA 135-E:3, II (a), (b), and providing that the

who has been convicted of a sexually violent offense is eligible for immediate

appropriate prosecuting authority “[a]t least 9 months prior to” the person’s

by its enumeration of an “emergency” provision “[i]n the event that a person

those at issue here, requiring that the process begin with notice to the

liberty interests of the person who is subject to such involuntary commitment.

completed prior to the end of a defendant’s original sentence is demonstrated

constraints at each stage of the commitment process, including, in addition to infringement on a person’s liberty. The legislature specifically enumerated time of the subject’s incarcerative sentence, thus limiting any possible unnecessary

plain language also demonstrates a concurrent legislative intent to protect the

Further evidence of the legislature’s intent to have this process

legislature intended these proceedings to be completed prior to the expiration

chapter to protect the public from sexually violent predators. However, its predators.” RSA 135-E:1. It is evident that the legislature intended this commitment procedure for the long-term care and treatment of sexually violent

which case he will be deemed to have waived the time limits.” required that the domestic violence petition be dismissed.

A plain reading of the language of the entire chapter indicates that the mentioning that a restraining order restrains one’s liberty.”

period of time after the filing of a domestic violence petition.

The express purpose of RSA chapter 135-E is to “create a civil

noncompliance is the result of a delay caused or requested by the juvenile, in such, the violation of these time frames, absent waiver by the defendant,

intended to protect a defendant’s liberty interests, noting, “It hardly bears N.H. at 644-45. We again concluded that the statutory time frames were

B:3, VII (2002), which require that certain hearings occur within a specified Similarly, in McCarthy, we analyzed RSA 173-B:4, I (2002) and RSA 173-

interest that triggers the need for due process safeguards.” Id. making this determination, we recognized that “it is the juvenile’s liberty

right requiring the court to forfeit jurisdiction if not complied with, unless such Id. at 266. We further held that these time limits “effectuate a substantive his alleged delinquency or ‘need for services’ rooted in his right to due process.” is a legislative pronouncement of a child’s right to the expeditious resolution of chapter.

p. 7 that are not. RSA 135-E:4, IV provides, in pertinent part:

otherwise subject to the provisions of this

recognized a distinction between time frames that are jurisdictional, and those plain language of this provision demonstrates that the legislature has with the emergency provision are not jurisdictional. RSA 135-E:4, IV. The general from filing a petition against a person to comply with these time limits, the person is released. RSA 135-E:4, IV. does not prevent the county attorney or attorney allegation. RSA 135-E:4, III. If either the MDT or the prosecuting attorney fails violent offense, is not dispositive of the case and 7

one thing in a statute normally implies the exclusion of another.

note that the legislature has explicitly stated that the time limits associated

a sexually violent predator and stating facts sufficient to support such person who has been convicted of a sexually

be necessary in the normal application of this statute. Hosp. of Nashua v. Rizzo, 141 N.H. 9, 11-12 (1996). Furthermore, in

It is a well-established canon of statutory construction that the expression of

completed prior to the expiration of the person’s incarcerative sentence, we

attorney then has forty-eight hours to file a petition alleging that the person is limitations, which results in the release of a county attorney or attorney general. RSA 135-E:4, II. The prosecuting jurisdictional, and failure to comply with the time sexually violent predator, provide a written report and recommendation to the of the term “emergency” indicates that such an expedited procedure should not The provisions of this section . . . are not unnecessary infringement on a person’s liberty. Further, the legislature’s use expeditious resolution of a petition under this chapter and limiting the

In addition to the legislature’s clear intent to have these matters

the person, and, if it determines the person meets the statutory definition of a

emergency procedure again illustrates its overriding concern for the weekends and holidays, during which the person remains in total confinement. The legislature’s emphasis on time limits in the administration of this

emergency hearing to determine if the person is a sexually violent predator. and allows the county attorney or attorney general to file a petition for an

a sexually violent predator, the MDT must, within seventy-two hours, assess Id. If the court determines that there is probable cause to believe the person is

twenty-four hours of the filing of a petition for an emergency hearing, excluding Under the statute, an initial probable cause hearing must be held within

accelerated procedure that temporarily detains the person subject to release release from total confinement.” RSA 135-E:4, I. This provision provides an deprive the court of jurisdiction and require the court to dismiss the action.”

p. 8 Predator Act.

respondent to trial within 60 days of the probable cause determination would

essential to the preservation of the rights of those against whom a petition has

trial within the mandatory time period set forth in the Kansas Sexually Violent

subject matter jurisdiction, recognized, “If jurisdictional, failure to bring a

jurisdictional, and, even if it was, Searcy had waived the requirement.

commitment under this statute. are jurisdictional, a failure to comply would result in dismissal of the petition. language, the legislature has implicitly recognized that, where the time limits The court found that “[s]trict compliance with the 60-day period . . . is

Id. at 5. that the district court lacked jurisdiction because he had not been brought to

respect to the time limits included in its Sexually Violent p. 8 Predator Act. 49 P.3d at 4. The Kansas Supreme Court, treating this as a question of

49 P.3d at 4. As in this case, the State argued that this time limit was not violent predator.” Kan. Stat. Ann. § 59-29a06 (Supp. 2001); see also Searcy, the court shall conduct a trial to determine whether the person is a sexually prejudicial to the due process rights of a person subject to involuntary part: “Within 60 days after the completion of any [probable cause] hearing . . ., substantial liberty interests. Furthermore, violation of these time limits is itself release, but “is not dispositive of the case.” RSA 135-E:4, IV. Through this Id. at 2. The applicable Kansas statute provided, in pertinent his right to due process, and that they were intended to protect the person’s

violent predator, Searcy appealed to the Supreme Court of Kansas, arguing 135-E:9, II are jurisdictional. re Searcy, 49 P.3d 1, 10 (Kan. 2002). In that case, after being found a sexually

The Supreme Court of Kansas has reached the same conclusion with

limits are therefore jurisdictional in nature.

jurisdictional time limits established in RSA 135-E:4 results in the person’s person’s right to have the petition against him expeditiously resolved, rooted in in RSA 135-E:7, I, and RSA 135-E:9, II are a legislative pronouncement of a McCarthy and Russell C., we find that the mandatory time frames established evidence of its intent that the time limits set forth in RSA 135-E:7, I, and RSA process protection.” Addington v. Texas, 441 U.S. 418, 425 (1979). As in for any purpose constitutes a significant deprivation of liberty that requires due The United States Supreme Court has recognized that “civil commitment

Further, it is also significant that a failure to comply with the non-

that the time frames in RSA 135-E:4 are not jurisdictional is significant Martel, 157 N.H. 53, 58 (2008). Thus, the fact that the legislature stated only said nor add words that it did not see fit to include. In the Matter of Martel & construing a statute, we will neither consider what the legislature might have p. 9 9

of the statute, be “illogical,” or be unintended by the legislature. thirty-day time limit.” concluding that such a finding would, respectively, thwart the primary purpose

comply is still the appropriate remedy. respondent to follow is to file a motion to dismiss.” these cases are inapposite, as none of the respective statutes involved a liberty N.H. at 551; passed, and no continuance has been granted, the proper procedure for a Robyn W., 124 N.H. at 381; Martino, 138 N.H. at 616. However,

intended that there should be ‘scrupulous compliance’ with the statutory In each of those cases we declined to find a statutory time limit jurisdictional, Kansas act upon which Florida’s law is modeled, we agree that the Legislature Robyn W., 124 N.H. 377 (1 p. 9 983), and Appeal of Martino, 138 N.H. 612 (1994). importance of the obvious liberty rights at stake, and consistent with the Smith v. New Hampshire Board of Psychologists, 138 N.H. 548 (1994), In re and Russell C., we must consider RSA chapter 135-E in light of our holdings in within the statutory thirty-day time period. The State argues that, rather than following our holdings in McCarthy

314.

of South Carolina held: “When the sixty day period [of time to hold a trial] has

Florida Supreme Court affirmed the dismissal, holding, “based on the

are mandatory, but not jurisdictional. for involuntary commitment because Goode had not been brought to trial Matthews, 550 S.E.2d at 314. In Goode, the trial court dismissed the action

616. Further, we note that, despite finding that these time frames are not counsel. Martino, 138 N.H. at afforded to a respondent under the Act, such as the right to a jury trial and cases, and found noteworthy the numerous other procedural protections framework in those cases does not distinguish between time frames that are (S.C. 2001), cert. denied, 535 U.S. 1062 (2002). However, the analytical S.W.3d 331, 333 (Mo. 2007) (en banc); In re Matthews, 550 S.E.2d 311, 314-15 817, 828 (Fla. 2002) (per curiam); In re Care and Treatment of Donaldson, 214

We recognize that other states have held that comparable time frames

870 (Kan. Ct. App. 2004). that the 60-day time limit is not jurisdictional. See In re Hunt, 82 P.3d 861,

Id. at 8- p. 9 9. This statute has since been amended to explicitly state

that this language is analogous to the statutory right to speedy trial in criminal determination with respect to the 60-day time period. Id. It further recognized under the statute were not jurisdictional, and its failure to make the same relied upon the legislature’s explicit determination that certain time limits at the decision that the 60-day time limit was in fact jurisdictional, the court been filed and a probable cause finding has been made.” Id. at 6. In arriving protection of the public.”

p. 10 previous order had expired prior to the hearing.

thwart both purposes of RSA chapter 135-C: treatment of the [appellant] and

required to act on the petition within thirty days of its filing, and, thus, the that case are distinguishable from those at issue here. First, the appellant in

appellant’s conditional discharge. standard for involuntary commitment under RSA chapter 135-C. The time unlike this case, there had already been a finding that the appellant met the Christopher K. was a renewal of an involuntary commitment order. Thus, pending a petition under RSA chapter 135-E holds. Second, the issue in Thus, he did not possess the degree of liberty interest that a person detained involuntary admission terminates at the end of the thirty-day period . . . would remain conditionally discharged following entry of the probate court’s order. Christopher K. was conditionally discharged during the delay and would

conditional discharge because, under RSA 135-C:39, II, the probate court was statutory goals similar to those of RSA chapter 135-E, the circumstances of While in Christopher K. we made our determination based upon

and the probate court had jurisdiction to hear the petition. Id. at 230. May 6, 2005; however, on April 18, 2005, a petition was filed to renew the discharge did not automatically terminate at the end of the thirty-day period,

concluding, “To interpret RSA 135-C:39, II so that the extension of the period of

the enumerated time limit. appellant argued that the probate court lacked jurisdiction to renew his petition following a hearing on May 24, 2005. Id. at 228. On appeal, the

involuntary admission order and conditional discharge were set to expire on statutorily required thirty days following a hearing. Id. at 221. The involuntarily admitted to the New Hampshire Hospital under RSA chapter 135- K., 155 N.H. 219 (2007). In that case, the appellant, Christopher K., was decision in a parental rights termination proceeding. Our conclusion is also consistent with our decision in In re Christopher

deprive the trial court of jurisdiction when there has been non-compliance with interests, none involve the loss of liberty, and, thus, these statutes do not liberty interest concerns.” Id. at 616. While these cases all involve important legislative history of the statute at issue “to indicate it was designed to cure Indeed, in Martino we clearly stated that there was nothing in the language or

Compensation Appeals Board decision that was not issued within the 380-81. Similarly, the statute at issue in Martino involved a New Hampshire

noncompliance with the mandatory sixty-day time limit for the issuance of a Smith, 138 N.H. at 550. The statute in Robyn W. involved a court’s statutorily required three months of the date of notice on a written complaint. Hampshire Board of Examiners of Psychologists to hold a hearing within the interest. The statute at issue in Smith involved the failure of the New limits.”

p. 11 proceedings consistent with this opinion.

[prejudiced party], in which case he will be deemed to have waived the time 11 “unless such noncompliance is the result of a delay caused or requested by the that has not been complied with requires dismissal of the underlying petition

were any additional delays, is unclear. We therefore remand for further

required in this case. We have consistently held that a jurisdictional time limit BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred.

time limits are jurisdictional. motion in that regard. However, the extent of this delay, and whether there delay in the initial determination of probable cause by filing a substantive statute. Here, the record demonstrates that the defendant caused at least some

occasioned”). the defendant because he cannot take advantage of delay that he has 135-E:9, II are jurisdictional, dismissal of the current petition may not be speedy trial analysis, “we initially discount any delays that were prompted by counted toward the time limit); State v. Allen, 150 N.H. 290, 294 (2003) (in proceeding, delays in bringing defendant to trial caused by his requests are not Brown, 157 N.H. 555, 563-64 (2008) (in Interstate Agreement on Detainers Act delay may not be counted against the statutory time period. See, e.g., State v. not jurisdictional, thus persuasively evidencing an intent that the remaining Therefore, to the extent the defendant has caused a delay, the period of that of a liberty interest, this result is consistent with the overall statutory scheme.

McCarthy, 152 N.H. at 646; see also Russell C., 120 N.H. at 268.

enforcement of mandatory time frames may arguably diminish the goals of a

While we hold that the time frames set forth in RSA 135-E:7, I and RSA issue in 225 (1983). Id. at 646; see also Russell C., 120 N.H. at 268; In re Eric C., 124 N.H. 222,

explicitly states that the time limits enumerated in the emergency provision are mandatory time limits are rooted in the right to due process and the protection at least one significant respect. As previously discussed, RSA 135-E:4, IV See McCarthy, 152 N.H. at 647. However, we reiterate that, when as a whole, RSA chapter 135-E is distinguishable from RSA chapter 135-C in limits were found to be jurisdictional. We disagree. We acknowledge that strict protecting the safety and welfare of the public, would be thwarted if the time The State also argues that the primary purpose of RSA chapter 135-E,

Christopher K.

12. There is no comparable provision in RSA chapter 135-C, the statute at

sexually violent predator requiring his involuntary commitment. Finally, read limits at issue here involve the initial determination that the person is indeed a