2009-469 The State of New Hampshire v. William Ploof

Michael A. Delaney

No. 2009-469

Hillsborough–northern judicial district

Superior Court (Abramson CONBOY, J. The defendant, William Ploof, appeals an order of the

felonious sexual assault and one count of sexual assault. The court sentenced ___________________________ In 1998, the defendant pleaded guilty to one count of aggravated

Christopher M. Johnson

powers provision, and his right to equal protection. We affirm. his right to procedural due process, the State Constitution’s separation of to RSA 135-E:13 (Supp. 2010). He argues that, on its face, the statute violates Hampshire Department of Corrections as a sexually violent predator pursuant , J.) committing him to the custody of the New

brief and orally, for the defendant.

attorney general, on the brief and orally), for the State.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New 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

circumstances exists under which the Act would be valid.” State v. Furgal mount successfully, since the challenger must establish that no set of facial challenge to a legislative Act is, of course, the most difficult challenge to The defendant has raised a facial challenge to RSA chapter 135-E. “A whole. First Berkshire Bus. Trust v. Comm’r, N.H. Dep’t of Revenue Admin. legislature’s intent as expressed in the words of the statute considered as a In matters of statutory interpretation, we are the final arbiters of the

words or phrases not in isolation, but in the context of the entire statute and ascribe the plain and ordinary meaning to the words used. Id. at 180. We read 161 N.H. 176, 179 ( p. 2 2010). When examining the language of a statute we

department of corrections for a period of five years. and the trial court entered an order committing him to the custody of the (quotation omitted). We review the trial court’s interpretation of the statute de the jury unanimously found that the defendant is a sexually violent predator Hampshire Health Care Assoc. v. Governor Constitution. The trial court denied the motion. Following a seven-day trial,, 161 N.H. 378, 385 ( p. 2 2011) challenging a statute’s constitutionality bears the burden of proof. New unconstitutional as a violation of the Separation of Powers Clause of the State Subsequently, the defendant asked the trial court to find RSA 135-E:10, I, Judicial Ret. Plan v. Sec’y of State, 161 N.H. 49, 53 (2010). The party doubts must be resolved in favor of its constitutionality.” Bd. of Trustees, N.H. protection and due process of law. The trial court denied the motion. omitted). “When doubts exist as to the constitutionality of a statute, those RSA chapter 135-E violates his state and federal constitutional rights to equal the constitution.” State v. Hynes Prior to trial, the defendant moved to dismiss the petition, arguing that, 159 N.H. 187, 199-200 (2009) (citations unconstitutional unless a clear and substantial conflict exists between it and inescapable grounds. In other words, we will not hold a statute to be “we presume it to be constitutional and will not declare it invalid except upon State v. Matthews, 157 N.H. 415, 417 (2008). When reviewing a legislative act,

conclude that the defendant has not succeeded in carrying this heavy burden. N.H. p. 2 206, 210 (2010) (quotation omitted). For the reasons stated herein, we

petitioned the superior court to commit him. predator within the meaning of the statute, after which the county attorney team issued a report concluding that the defendant was a sexually violent commitment of sexually violent predators. In May p. 2 2007, a multidisciplinary initiated the process established under RSA chapter 1 p. 3 35-E for the involuntary approached the end of his prison term, the Hillsborough County Attorney months at the house of corrections. In March 2007, as the defendant him to concurrent terms of four to ten years at the state prison and twelve 3

impending release to either the county attorney or the attorney general. Id The agency with custody of the inmate is required to give notice of his for an assessment and evaluation, the multidisciplinary team’s written report interview. RSA 1 p. 3 35-E:3, V(c). Within four months after receiving the request 135-E:3, V(a). The person being evaluated must be offered a personal determination of whether such person is a sexually violent predator.” RSA person’s criminal background, and any other factor that is relevant to the “a review of the person’s institutional history and treatment record, if any, the The multidisciplinary team assesses and evaluates the person, including

Id. to pay for counsel, the court shall appoint counsel pursuant to RSA 604-A:2. person is conducted by the multidisciplinary team.” Id. If the person is unable represent the person before any interview or personal examination of the offenders.” RSA 1 p. 3 35-E:3, I. “[T]he court shall appoint legal counsel to specialized training or experience in the area of treatment and diagnosis of sex RSA 135-E:2, VI. one licensed psychiatrist and one licensed psychologist each of whom has her behavior as to pose a potentially serious likelihood of danger to others.” “shall include, but is not limited to, 2 licensed psychiatrists or psychologists or is of such a degree that the person has serious difficulty in controlling his or sexually dangerous predator. RSA 135-E:3, III. The multidisciplinary team violence” means that “the person’s propensity to commit acts of sexual violence the individual by a multidisciplinary team to determine whether the person is a offenses.” RSA 135-E:2, VII. The term “[l]ikely to engage in acts of sexual may, within forty-five days of receipt of such notice, request an assessment of volitional capacity which predisposes the person to commit sexually violent believe that the person is likely to engage in acts of sexual violence,” he or she abnormality” is defined as “a mental condition affecting a person’s emotional or either the county attorney or the attorney general has “an articulable basis to term control, care, and treatment.” RSA 135-E:2, XII. The term “[m]ental to engage in acts of sexual violence if not confined in a secure facility for long-. If from a mental abnormality or personality disorder that makes the person likely person who “[h]as been convicted of a sexually violent offense” and “[s]uffers to be released from prison. RSA 135-E:3, II. A sexually violent predator is any several months before a person who has committed a sexually violent offense is The process for civil commitment of sexually violent predators begins

I. RSA Chapter 1 p. 3 35-E

intent. Id. unambiguous, we do not look beyond it for further indications of legislative the entire statutory scheme. Id. When the language of a statute is plain and p. 4 4

not be used as the sole basis for committing a person. Id declarant is unavailable to testify.” RSA 135-E:10, IV. Hearsay evidence shall evidence contains circumstantial guarantees of trustworthiness and the exceptions to the hearsay rule or unless the court finds that the hearsay hearsay evidence is not admissible “unless it falls within one of the recognized E:10, III. Notwithstanding the general inapplicability of the rules of evidence, report’s probative value substantially outweighs its prejudicial effect. RSA 135determination is made by a jury, the verdict must be unanimous. Id multidisciplinary team’s report is inadmissible unless the court finds the that the person is a sexually violent predator. RSA 135-E:11, I. If the the person is a sexually violent predator. RSA 135-E:10, II. The The State has the burden of proving by clear and convincing evidence the person’s prior conduct if such evidence is relevant to the issue of whether rules shall not apply.” RSA 135-E:10, I. The court may consider evidence of patient privilege and privileged communications “or other similar statutes or potentially serious likelihood of danger to others.” RSA 135-E:11, II. An order At trial, the rules of evidence, statutes and rules governing the doctorpersonality disorder has so changed that the person no longer poses a and treatment until such time as the person’s mental abnormality or committed to the custody of the department of corrections for control, care, the expiration of the incarcerative portion of all sentences, “the person shall be court or jury determines that the person is a sexually violent predator, upon

health professionals to perform an examination. RSA 135-E:9, IV. demand a jury trial. RSA 135-E:9, I. The person may retain experts or mental person is a sexually violent predator.” RSA 135-E:9, II. Either side may election of a jury trial, the court must conduct a trial “to determine whether the cause, or, in cases where a jury trial has been elected, within sixty days after Within sixty days after the trial court’s initial determination of probable

must also be sent to the person who is the subject of the petition. Id sufficient to support such allegation.” RSA 135-E:6. A copy of the petition court “alleging that the person is a sexually violent predator and stating facts the county attorney or attorney general may file a petition with the superior a sexually violent predator, within fourteen days of receiving the team’s report, If the multidisciplinary team finds that the person meets the definition of proceedings. Id. that the person remain in custody in an appropriate secure facility for further sexually violent predator.” RSA 135-E:7. If the court so finds, it must order probable cause exists to believe that the person named in the petition is a ten days of the filing of the petition, “the court shall determine whether . Within

general. Id. containing its findings must be provided to the county attorney or attorney circumstances;

p. 5 conditions, risk assessment, relapse profile, and current patterns, sexual arousal patterns, offense patterns, co-occurring

(2) Be tailored to the offender’s criminal history, cognitive

N.H. Admin. Rules established within 30 days of the person’s commitment to a secure facility.” individual needs of the person as determined via the person’s assessment, and develop an individual treatment plan for that person “based upon the as a sexually violent predator is provided a treatment team that is required to plans for sexually violent predators. Pursuant to the rule, a person committed Administrative Rule He-C 702.04, establishing the requirements for treatment predator. RSA 135-E:22. Among the rules promulgated is New Hampshire is being evaluated to determine whether he or she is a sexually violent multidisciplinary teams, and the protocol for informing a person that he or she (1) Be offender specific; components of basic treatment plans, procedures to be followed by the sexually violent predators who are subject to involuntary commitment, the required to adopt rules relative to the designation of secure facilities for

The New Hampshire Department of Health and Human Services is

merit on its face, the court may deny the petition without a hearing. Id indigent. RSA 135-E:14. If the court determines that the petition is without petition, the court must appoint counsel to represent the person if he or she is appointment of counsel may assist in “an appropriate resolution” of the committed person files such a petition and the court determines that person remains a sexually violent predator. RSA 135-E:13, I-II. If the the State bears the burden of proving by clear and convincing evidence that the the commissioner files such a petition, the court must hold a hearing at which corrections may file a petition for discharge at any time. RSA 135-E:13, :14. If Either the committed person or the commissioner of the department of

evidence that the person remains a sexually violent predator. Id. the hearing, the State has the burden of proving by clear and convincing person at the initial trial, except for the right to a jury.” RSA 135-E:12, II. At person “is entitled to the benefit of all procedural protections afforded the period. RSA 135-E:12, I. The trial court is required to hold a hearing and the or attorney general may petition to recommit the person for another five-year Before the end of the five-year commitment period, the county attorney

person is indigent. Id. public defender must be appointed to represent the person on appeal if the person is a sexually violent predator may be appealed. RSA 135-E:11, III. The committing a person is valid for up to five years. Id. The determination that a p. 6 N.H. Admin. Rules

(11) Be signed and dated by all members of the treatment team.

(10) Be reviewed quarterly . . . ; and

p. 6 N.H. Admin. Rules

medication management strategies when indicated;

(8) The dated signatures of all the members of the treatment team.

providers, and those responsible for the identification of

the review; and (7) A description of the level of the person’s participation, if any, in (6) A list of the participants in this annual review process;

the person, including substance abuse providers, mental health

(5) Need for other health care or social services;

treatment agencies responsible for treatment and supervision of (9) Integrate the collaborative efforts of all criminal justice and

to the [individualized treatment plan];

and supervision; (8) Indicate the treatment program staff responsible for treatment administered, and expectations thereof . . .;

(4) Assessment of the need for additional services and/or revisions

(7) Specify clinical screening and progress assessment tools to be

(3) Reassessment of the person’s medications, if applicable; (2) Review of the person’s psychiatric and medical diagnosis(es);

(6) Clearly define the expectations of the person;

documentation. See

sexual violence if discharged;, He-C 702.05(d)-(e). (1) Determination of whether the person is likely to commit acts of

(5) Contain the timelines for goal attainment;

team and set forth the specific required components of the review that each individualized treatment plan be reviewed quarterly by the treatment individualized portion of the treatment plan shall address. The rules require The administrative rules also set forth specific requirements that the

annual review must include: in addition to the components of a quarterly review, the components of the quarterly review serves as the annual individualized treatment plan review, and interventions; (4) Contain measurable treatment goals, objectives, and treatment p. 6 N.H. Admin. Rules, He-C 702.04(c)-702.05(c). The fourth

comprehensive medical examination;

(3) Address any medical conditions as identified by a p. 7 7

A. Rules of Evidence

deprivation of the defendant’s liberty interest, the State contends that RSA numerous safeguards in the statute to protect against the risk of erroneous prove the allegations of the petition beyond a reasonable doubt.” unreliable solely because the rules of evidence do not apply.” Given the Second, RSA 135-E:11 violates due process in failing to require the State to commitment proceeding under RSA chapter 135-E should not be deemed abrogating the rules of evidence without enacting an adequate substitute. the prejudicial misuse of information.” The State argues that “a civil deprivation. He argues that “[f]irst, RSA 135-E:10 violates due process in admission of evidence deprives the court of a powerful tool for the prevention of procedures inadequately protect his liberty interest against erroneous admissibility of evidence” and that “[t]he absence of any rules . . . to govern the E:10 leaves the parties with no ready principles by which to determine the The defendant argues that “[o]ther than with regard to hearsay, RSA 135-

The defendant argues that in two specific respects the enacted

are substantial and parallel those at risk in the criminal context.” In re stake in civil commitment proceedings, loss of liberty and social stigmatization, As to the first factor, we have recognized that “[t]he private interests at

government’s interest. Richard A. (3) the government’s interest. See, 146 N.H. at 298. an erroneous deprivation of those interests, against the third factor, the probable value, if any, of additional or substitute procedural safeguards; and at stake in this case are substantial, we must weigh the second factor, risk of erroneous deprivation of such interest through the procedures used, and the of liberty that requires due process protection). Because the private interests private interest that will be affected by the official action; (2) the risk of an (19 p. 7 79) (civil commitment for any purpose constitutes a significant deprivation factors are considered in analyzing a procedural due process claim: (1) the The defendant grounds his challenge in procedural due process. Three Richard A., 146 N.H. 295, 298 (2001); see Addington v. Texas, 441 U.S. 418

guidance only. See defendant’s claim under the State Constitution, citing federal opinions for Article 15 of the New Hampshire Constitution.” We first address the Mathews v. Eldridge and Fourteenth Amendments to the United States Constitution, and Part I,, 424 U.S. 319, 332 (19 p. 7 76). 135-E “violate[ ] his rights under the due process clauses contained in the Fifth In re Eduardo L., 136 N.H. 678, 686 (1993); The defendant first argues that the procedures set forth in RSA chapter

II. Due Process p. 8 8

wherever reasonably possible.” State v. Smagula enactment will be construed to avoid conflict with constitutional rights “It is a basic principle of statutory construction that a legislative must apply). 2010) (although rules of evidence do not apply, simple notions of due process not apply. See Pittman, No. A09-1931, 2010 WL 1541453, at *3 (Minn. Ct. App. April 20, In various other proceedings, the New Hampshire Rules of Evidence do automatic admissibility of any and all materials); In re Civil Commitment of (relaxed standard for admissibility of evidence cannot be equated with identical procedural safeguards under the State Constitution.” Richard A. requirements. See proceedings parallel those at risk in the criminal context “does not compel State v. Lee, 716 N.E.2d 751, 757 (Ohio Ct. App. 199 p. 8 8) requiring the trial court to admit only evidence that satisfies these basic trustworthy. Eduardo L. determinations of relevancy and reliability, we construe RSA 135-E:10 as Given that the trial court is vested with the discretion to make initial

it finds relevant, not too remote, and given by a credible witness”). cause hearing the trial court, “within its discretion, may admit evidence which 219 (1974) (decided before adoption of the rules of evidence) (in a probable of the evidence at issue.” Id. at 6 p. 8 87; see also State v. Arnault, 114 N.H. 216, risk in relying upon the district court’s ability to consider the trustworthiness The fact that the private interests at stake in civil commitment , 136 N.H. at 684-85. We discerned “no substantial assistance of counsel,” and that evidence admitted at the hearing be defendant be given notice, a hearing, the right to review records, and the due process applies to juvenile certification proceedings” and “requires that the admissible. For example, in In re Eduardo L. we stated that “[i]t is settled that nonetheless required some degree of trustworthiness in order for evidence to be

N.H. R. Ev. 1101(d)(3). However, in such proceedings we have

356-57 (1997). procedures and evidentiary standards.” Kansas v. Hendricks, 521 U.S. 346, context,” provided that “the confinement takes place pursuant to proper interest in avoiding physical restraint may be overridden even in the civil interest “is not absolute” and the “individual’s constitutionally protected come into play.” Id. (quotation and brackets omitted). The individual’s liberty protections afforded by the State and federal due process provisions does not be committed rather than determination of guilt or innocence, the full range of proceeding is the mental condition and dangerousness of the person sought to N.H. at 29 p. 8 8. “Because the primary focus of an involuntary commitment

the evidence that it deems reliable and pertinent.” 135-E:10 in fact “allows the trial court broader discretion to hear and consider individual. The state has a legitimate interest under its parens

p. 9 occur and that it can have a very significant impact on the

something else is less important than that we recognize that it can

Whether we label this phenomena “stigma” or choose to call it

others can engender adverse social consequences to the individual. Id. mental hospital after a finding of probable dangerousness to self or Moreover, it is indisputable that involuntary commitment to a

from the dangerous tendencies of some who are mentally ill. deprivation of liberty that requires due process protection. also has authority under its police power to protect the community

at 425-26 (citations omitted).

B. Burden of Proof civil commitment for any purpose constitutes a significant because of emotional disorders to care for themselves; the state patriae powers in providing care to its citizens who are unable

predator beyond a reasonable doubt. In Addington v. Texas prove the allegations in the petition for commitment as a sexually violent factor in a procedural due process analysis by failing to require the State to In addition, the defendant argues that RSA 135-E:11 violates the second

hospital. Addington protect the defendant’s private interest against erroneous deprivation., 441 U.S. at 419. The Court recognized that commit an individual involuntarily for an indefinite period to a state mental Accordingly, we conclude that the procedures under RSA 135-E:10 adequately to the Federal Constitution in a civil proceeding brought under state law to ready principles by which to determine the admissibility of evidence.” Court addressed the standard of proof required by the Fourteenth Amendment statute withstands the defendant’s argument that it “leaves the parties with no unavailable to testify.” RSA 135-E:10, II-IV. Under these circumstances, the, the Supreme “contains circumstantial guarantees of trustworthiness and the declarant is admissible unless it falls within a recognized exception or the court finds that it substantially outweighs its prejudicial effect”; and hearsay evidence is not inadmissible unless the court finds that the report’s “probative value the person is a sexually violent predator”; the multidisciplinary team’s report is conduct is allowed only when such evidence “is relevant to the issue of whether fundamental protections: the introduction of evidence of the individual’s prior information.” Moreover, other requirements in RSA 135-E:10 support these evidence, the jury will be faced with “the unregulated presentation of defendant’s assertion that in the absence of formal application of the rules of

These basic requirements of relevance and reliability refute the p. 10 10 Id

to apply it too broadly or casually in noncriminal cases. part of the moral force of the criminal law, and we should hesitate prescribed or defined in the Constitution, is regarded as a critical reserved for criminal cases. This unique standard of proof, not

Despite the Supreme Court’s 1979 ruling in Addington

guarantees” is a matter of state law. Id adopted, an amendment to Part I, Article 15 that states: “In any proceeding to the Constitutional Convention of 1984 proposed, and the voters subsequently our citizens.” Opinion of the Justices, 122 N.H. 199, 204 (1982). Thereafter, convincing standard of Addington “adequately protects the liberty interests of Rather, we advised the Senate that we were not persuaded that the clear and “beyond a reasonable doubt” standard historically has been proceedings under RSA chapter 135-C (civil commitment of mentally ill). Butler, 117 N.H. 927, 935 (1977), as applicable to civil commitment 1982 to reexamine the reasonable doubt requirement recognized in Proctor v.

convincing’ standard which we hold is required to meet due process Id “determination of the precise burden equal to or greater than the ‘clear and meet and thereby erect an unreasonable barrier to needed medical treatment.” constitutional minimum.” Id. at 431. Accordingly, the Court stated that uncertainties of psychiatric diagnosis, it may impose a burden the state cannot to state, procedures must be allowed to vary so long as they meet the mold. As the substantive standards for civil commitment may vary from state variety of solutions to problems and not be forced into a common, uniform required.” Id sense be equated to a criminal prosecution. In addition, the 431-32. “The essence of federalism is that states must be free to develop a meeting the demands of due process . . . the reasonable-doubt standard is not a punitive sense. . . . [A] civil commitment proceeding can in no proof is not required and is not adaptable to the needs of all states. See The Court stated that while “the preponderance standard falls short of prosecutions. In a civil commitment state power is not exercised in id. at standard for civil commitment proceedings, this more stringent standard of Court explained that while some states have chosen to adopt the criminal law of the individual and the legitimate concerns of the state.” Id. at 431. The proof, clear and convincing evidence, “strikes a fair balance between the rights . at 432. Therefore, the Court concluded that the middle level burden of

“inappropriate in civil commitment proceedings because, given the . at 431. The Court found the reasonable doubt standard

called for in civil commitment proceedings as opposed to criminal . at 428 (citations and quotation omitted). [t]here are significant reasons why different standards of proof are

However, the Court also recognized that p. 11 11

cause hearing; the right to an interview with the multidisciplinary team; the to perform an independent mental health assessment; the right to a probable expense for indigent individuals; the right to retain mental health professionals commitment including: the right to counsel, which is provided at State statute affords a number of safeguards designed to protect against erroneous E carry the risk of erroneous deprivation of his liberty interest. However, the The defendant argues that the procedures contained in RSA chapter 135-

RSA chapter 135-C. Id amendment on the standard of proof for commitment on civil petition under Addington correctness of factual conclusions for a particular type of adjudication.” concerning the degree of confidence our society thinks he should have in the Due Process Clause and in the realm of factfinding, is to instruct the factfinder chapter 135-E does not violate the state constitutional due process guarantee. “The function of a standard of proof, as that concept is embodied in the Sanborn, we hold that the clear and convincing standard of proof in RSA imposed.” Richard A., 146 N.H. at 298-99. Based upon Addington and finder about the degree of certainty required before a civil commitment can be secure a criminal conviction, it nevertheless sends a strong message to the fact “[w]hile the clear and convincing standard falls short of the proof required to importance attached to the ultimate decision.” Id. As we have recognized, allocate the risk of error between the litigants and to indicate the relative Four years later we addressed the effect of this constitutional, 441 U.S. at 423 (quotation omitted). “The standard serves to

commitment cases. Id. at 446. Butler insofar as it imposed a reasonable doubt burden of proof in civil shall be that of clear and convincing evidence,” thereby overruling Proctor v. petitioner’s burden of proof in commitment proceedings under RSA 135-C:34 the 1984 amendment to article 15 requires . . . [that] [h]enceforth the concluded that “[t]here being no apparent justification for different standards, after a verdict of not guilty by reason of insanity to a criminal charge.” Id. We 135-C:34 that is different from the State’s burden when it seeks commitment basis for holding that due process can require a burden of proof under RSA the effect of the 1984 amendment, for we perceive no intellectually realistic however, “unanimous . . . in believing that we have no such option to confine which the application of its terms literally requires.” Id. at 444. We were, respondent urges us to limit the amendment’s effect to criminal insanity cases, not, of course, deal with commitments under RSA 135-C:34, and the . at 431. As we noted, “[t]he terms of the amendment do

(1988) (quotation omitted). mental disorder must be established.” In re Sanborn, 130 N.H. 430, 444 potentially dangerous to himself or to others and that the person suffers from a process shall require that clear and convincing evidence that the person is commit a person acquitted of a criminal charge by reason of insanity, due p. 12 12

The State argues that Opinion of the Justices

rules of evidence.” Instead, the State argues, the statute simply creates an adopted,” “[n]or does it create . . . [a] partial abrogation or modification of the RSA 135-E:10 “does not modify an existing rule of evidence that this Court had The defendant next argues that based upon our decision in Opinion of does not apply because

particular facts or circumstances involved in such a case. III. Separation of Powers relevancy determinations in sexual predator cases without regard for the civil commitment cases,” thereby usurping the judicial function of making process claims, we reach the same result under the Federal Constitution. See control how a court regulates evidence in adjudicating sexually violent predator than does the State Constitution with regard to the defendant’s procedural due eliminating the application of the rules of evidence, “the legislature seeks to Because the Federal Constitution does not provide any greater protection under Part I, Article 37 of the State Constitution. He asserts that by See public from, and providing care and treatment for, sexually violent predators. we must hold that RSA 135-E:10 violates the principle of separation of powers legislation modifying court rule of evidence would violate separation of powers), purpose of the statute. Here the State has a strong interest in protecting the the Justices (Prior Sexual Assault Evidence) defendant’s procedural due process claim – the government’s interest in the, 141 N.H. 562 (1997) (proposed defendant’s private interests, we consider the third factor in analyzing the forth in the statute carry undue risk of an erroneous deprivation of the Having concluded that neither the procedures nor the burden of proof set

State v. Veale, 158 N.H. 632, 645 (2009), cert. denied, 130 S. Ct. 748 (2009).

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). Rand, 148 N.H. 609, 614 (2002) (adopting standard of reliability set forth in unconstitutional deprivation of rights. See Baker Valley Lumber v. Ingersollthe defendant does not argue that the statute as applied to him resulted in an thousand pages of trial transcripts, in addition to a three-day Daubert hearing, It is also noteworthy that, despite seven days of trial, generating over one due process are not violated by the procedures set forth in RSA chapter 135-E. this factor and, on balance, conclude that the defendant’s rights to procedural 370, 374-75 (1950); Addington, 441 U.S. at 426. Accordingly, we weigh heavily In re Christopher K., 155 N.H. 219, 225 (2007); In re Moulton, 96 N.H.

We find these protections adequate. verdict; the right to appeal; and the right to petition for discharge at any time. prove its case by clear and convincing evidence; the right to a unanimous jury jury trial; the right to exclude hearsay evidence; the requirement that the State right to retain experts at State expense for indigent individuals; the right to a p. 13 13

IV. Equal Protection guidance only. See defendant’s claim under the State Constitution, citing federal opinions for Articles 1, 12, and 14 of the New Hampshire Constitution. We first address the the Fourteenth Amendment to the United States Constitution and Part I, statute’s express preclusion of the rules of evidence. The defendant relies upon chapter p. 13 135-C or RSA chapter 171-B. Specifically, the defendant points to the chapter 135-E. Unlike the proposed legislation addressed in Opinion of the than New Hampshire law affords to persons facing civil commitment under RSA expressly provided that the rules do not apply to proceedings under RSA to equal protection of the laws because it enacted lesser procedural protections proceedings unless otherwise provided by statute. Here, the legislature has Finally, the defendant argues that RSA chapter 135-E violates his right Under the plain language of Rule 1101(b), the rules of evidence apply to civil

(b) Proceedings Generally

(a) Courts

rules. constitution or statutes of the State of New Hampshire or these violate our state’s constitutional provision mandating the separation of powers. between the statute and the rules of evidence, we hold that the statute does not this court under its rulemaking authority. Because there is no conflict Because Opinion of the Justices Justices, RSA p. 13 135-E:10 does not modify an existing rule of evidence adopted by

E was enacted, provided in part: New Hampshire Rule of Evidence 1101, in effect when RSA chapter p. 13 135-

and criminal proceedings unless otherwise provided by the . – These rules apply generally to all civil

courts, probate courts, superior court, and the supreme court. . – These rules apply to the proceedings in the district

the State does not ask us to reexamine Opinion of the Justices. 582-83 (1930). Nonetheless, the circumstances of this case are different and v. Governor, 161 N.H. 378, 392 (2011); Opinion of the Justices, 84 N.H. 559, does not constitute binding precedent. See New Hampshire Health Care Assoc. response to a request from the Senate, rather than a litigated case, the opinion was an advisory opinion issued in

take under New Hampshire Rule of Evidence 1101(b). We agree. rules of evidence apply, an action that the legislature is expressly allowed to exception for a particular type of proceeding from the general principle that the to a legitimate state interest. Verizon New England v. City of Rochester p. 14 of showing that the statutory classification does not bear a rational relationship here. Under this standard the party challenging the statute bears the burden We agree with the trial court that the rational basis standard applies

(Quotations and brackets omitted.)

be at stake.

test, even in cases such as this one, where liberty may ultimately application of differing sets of rules have applied the rational basis

that have analyzed equal protection challenges based upon the fundamental right to have particular procedures apply. The courts ha[s] not pointed the Court to, and the Court has not found, a

arbitrary or without some reasonable justification.” Id. “Where a classification N.H. 263, 270 (2004). The defendant must show that “the classification is

applicable in the general civil commitment proceedings. But [he]

rational basis review. See courts that have addressed this issue in other jurisdictions, most have applied court noted in its order denying the defendant’s motion to dismiss, of the The defendant argues that strict scrutiny ought to apply. As the trial [his] right to have applied to [him] the rules and procedures fundamental right to liberty, the classification itself only affects while [the defendant] assert[s] that RSA 135-E affects [his]

987 P.2d at 796, the trial court reasoned that strictly scrutinized. See and Care of Luckabaugh, 568 S.E.2d 338, 351 (S.C. 2002). Quoting Martin, In re Detention of Williams Classifications based upon suspect classes or affecting fundamental rights are, 628 N.W.2d 447, 453 (Iowa 2001); In re Treatment Ct. App. 1999); In re Detention of Samuelson scrutiny applied depends upon the type of legislative classification at issue., 727 N.E.2d 228, 236 (Ill. 2000); When we review legislation under equal protection analysis, the level of, e.g., Martin v. Reinstein, 987 P.2d 779, 796 (Ariz.

basis test. Id. 638 (quotation omitted). In all other cases, the court employs the rational discriminatory classifications involving “important substantive rights.” Id. at

at 638. differences between the classes justify disparate treatment under the law.” Id. intermediate, or rational basis standard of review, we determine whether explaining the equal protection guarantee. Whether applying a strict scrutiny, situated need not be treated the same under the law is a shorthand way of (2004) (quotation omitted). “Holding that persons who are not similarly similarly situated should be treated alike.” In re Sandra H., p. 15 150 N.H. 634, 637 The equal protection guarantee is “essentially a direction that all persons 15

that the classification is irrational or arbitrary. See with regard to the application of the rules of evidence, he has failed to establish New Hampshire’s other forms of civil commitment present similar challenges” Although the defendant argues that “sex offender civil commitment and

problems); Martin within the Mental Health Code, and such persons present different societal characteristics which set them apart from the greater class of persons who fall

confined for mental illness). demonstrate that sexually violent predators are similarly situated to others Merryfield v. State, 241 P.3d 573, 578 (Kan. Ct. App. 2010) (defendant failed to inappropriate candidates for existing involuntary commitment procedures); conditions of sexually violent persons render them unamenable to or unreasonable for the legislature to determine that the underlying mental violent persons and other classes of mentally ill, it was not irrational or pose to society.” Id, 987 P.2d at 797 (given the difference between sexually persons are inadequate to address the risk these sexually violent predators involuntary commitment procedures for the treatment and care of mentally ill dangerous persons. These are legitimate state interests. See 237 (persons subject to the Sexually Dangerous Persons Act possess behavior.” RSA 135-E:1. The legislature also found that “[t]he existing and treatment to sexually violent predators and to protect society from such and those features render them likely to engage in criminal, sexually violent Samuelson, 727 N.E.2d at risk. Accordingly, the purpose of RSA chapter 135-E is to both provide care features which are unamenable to existing mental illness treatment modalities, different from other civilly committed persons with respect to treatment and number of sexually violent predators exist who have antisocial personality risks to society. As the statute provides, “a small but extremely dangerous The legislature has thus declared that sexually violent predators are sexually violent predators have special treatment needs and present unique community from sexual predators is a compelling one). In enacting RSA chapter 135-E, the legislature explicitly found that nation and the public interest in protecting vulnerable members of the Safety v. Doe, 538 U.S. 1, 4 (2003) (sex offenders are a serious threat in this dangerous persons are legitimate state interests); see also Conn. Dept. of Pub. p. 15 155 N.H. at 225 (providing care to the mentally ill and protecting society from

predators.” Id. commitment procedure for the long-term care and treatment of sexually violent

omitted). challenge.” Sandra H., p. 15 150 N.H. at 638 (quotations, brackets and citation sufficiently related to a government interest, it will survive an equal protection certain circumstances, and the legislation’s differing treatment of the groups is realistically reflects the fact that the two groups are not similarly situated in p. 16 16

defendant’s right to equal protection under the New Hampshire Constitution. We hold that, on its face, RSA chapter 135-E does not violate the

The defendant cites Grindle v. Miller

81 (1940). precedent on the question before us. See Trustees v. Exeter, 90 N.H. 472, 479chapter 135-E. Accordingly, we decline to apply the case as controlling offender statute at issue in Grindle was substantively different from RSA constitutional issues alluded to. Furthermore, the former dangerous sexual based upon specific statutory construction and contains no analysis of the under [the State Constitution].” Id. at 217. However, the case was decided reason of insanity or civil commitments generally would violate equal protection sexual offenders] from those provided for commitment of persons acquitted by “permitting different procedures for the commitment and release of [dangerous the applicable statutes. Id. at 2 p. 16 16. In upholding the statute we noted that involuntarily committed in order to justify differing release procedures under distinguishing between a dangerous sexual offender and other individuals plaintiff in Grindle contended that there was no rational basis for Offenders Act, a prior version of the statute before us here. Id. at 215. The challenged the constitutionality of RSA chapter 173-A, the Dangerous Sexual the rules of evidence to violate equal protection.” In Grindle, the defendant that following the logic in that case, we “must find RSA 135-E’s prohibition on

(quotations, brackets and citation omitted). government interest, it will survive an equal protection challenge.” Id. legislation’s differing treatment of the groups is sufficiently related to a the two groups are not similarly situated in certain circumstances, and the H., 150 N.H. at 638. “Where a classification realistically reflects the fact that this context is rationally related to a legitimate governmental interest. Sandra commitment as a sexually violent predator, the need for different procedures in unique nature of the proof required to meet the statutory requirements for civil commitment under RSA chapter 135-E as identified by the legislature and the 135-E:2, XII. Given the specific characteristics of individuals subject to civil confined in a secure facility for long-term control, care, and treatment. RSA it likely that he or she will engage in acts of sexual violence in the future if not and must suffer from a mental abnormality or personality disorder that makes example, the individual must have been convicted of a sexually violent offense to qualify as a sexually violent predator under RSA chapter 135-E. For disability” found not competent to stand trial), far different criteria must be met 135-C (mental illness) or RSA chapter p. 17 171-B (persons with an “intellectual In contrast to individuals facing civil commitment under RSA chapter 17

DALIANIS, C.J.