2013-0737, State of New Hampshire v. Shawn Carter

four complaints against the defendant in the circuit court. Two complaints The pertinent facts are not in dispute. On July 10, 2013, the State filed

98. We reverse and reman d. the New Hampshire Constitution because it conflicts with Superior Court Rule the statute violates the separation of powers provision of P art I, A rticle 37 of pre - indictment discovery pursuant to RSA 604:1 - a (2001), on the ground that Carter, from a decision of the Superior Court (O’Neill, J.) denying his motion for LYNN, J. This is an interlocutory appeal by the defendant, Shawn

brief and orally, for the defendant. Thomas Barnard, senior assistant appellate defender, of Concord, on the

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Stacey L. Pawlik, assistant attorney

No. 20 13 - 737 Belknap

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, Concor d, 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

of a felony complaint in circuit court and the subsequent return of an that, in an interlocutory appeal such as this one, the interval between the filing (quotation omitted). The State does not argue that this case is moot, and given v. Town of Plymouth Zoning Bd. of Adjustment, 160 N.H. p. 2 253, 255 - 56 (2010) rigid rules, but is regarded as one of convenience and discretion.” Batchelder address the issue of mootness. “[T] he question of mootness is not subject to of his pre - indictment motion, before turning to the merits, we will briefly Because the defend ant has now received the discovery he sought by way

discovery from the State. see RSA 630:1 - a ( p. 2 200 7); RSA 630:1 - b, and shortly thereafter he received of first degree murder and second degree murder with respect to each victim, the meantime, on Oct ober 3, the defendant was indicted on alternative counts interlocutory appeal of its ruling. We accepted the appeal on December 6. In objection, the superior court granted the defendant’s motion to approve an judiciary to control its own proceedings. On October 28, over the State’s discovery in criminal cases, and therefore usurps the essential power of the Court Rule 98, a rule that establishes, among other things, time limits for unconstitutional because it is a procedural statute that conflicts with Superior Assault Evidence), 141 N.H. 562 (1997) (PSAE), the court found RSA 604:1 - a Re lying primarily on our decision in Opinion of the Justices (P rior Sexual superior court denied the motion by a written order dated September 26. RSA 604:1 - a. The State objected to the motion, and, following a hearing, the

have entered the case. given to the county attorney, or the attorney general if he shall court, and notice of petition therefor and hearing ther eon shall be with respect thereto shall be within the jurisdiction of the superior subsequent to indictment, provided that all judicial proceedings shall have the same rights to discovery and deposition as he has been bound over to the superior court and prior to indictment, he Discovery in Criminal Matters. After an accused person has

provides: superior court, relying on RSA 604:1 - a in support of the motion. This statute On August 9, the defendant filed a motion for pre - indictment discovery in

the s uperior c ourt. probable cause to support the complaints, and the charges were bound over to same date, and was held without bail. On August 6, the circuit court found RSA 6 p. 3 30:1 - b, I ( p. 2 2007). The defe ndant appeared before the circuit court on the counts of knowing or reckless second degree murder of Priscilla Carter. See murder of Timothy Carter; and two complaints charged him with alternative charged him with alternative counts of knowing or reckless second degree 3

in one indissoluble bond of union and amity. chain of connection that binds the whole fabric of the constitution nature of a free government will admit, or as is consistent with that kept as separate from, and independent of, each other, as the thereof, to wit, the legislative, executive, and judi cial, ought to be In the government of this state, the three essential powers

Part I, Article p. 3 37 of the New Hampshire Constitution provides:

Id. (quotation omitted). establish that no set of circumsta nces exist under which [it] would be valid.” being the case, the State, as challenger of the statute’s constitutionality, “must unconstitutional. See State v. Hollenbeck, 164 N.H. 154, 158 (2012). That ca se, it amounts to a determination that the statute is facially application of RSA 604:1 - a to the particular facts and circumstances of this citation omitted). Because the trial court’s ruling was not based on the doubts must be resolved in favor of its constitutionality.” Id. (quotations and means that when doubts exist as to the constitutionalit y of a statute, those clear and substantial conflict exists between it and the constitution. It also “This means that we will not hold a statute to be unconstitutional unless a declare it invalid except upon ines capable grounds.” Id. (quotation omitted). reviewing a legislative act, we presume it to be constitutional and will not Hampshire Health Care Assoc. v. Governor, 161 N.H. p. 3 378, 385 (2011). “In the Sta te bears the burden of demonstrating that it is unconstitutional. New 310, 314 (2012). As the party challenging the constitutionality of RSA 604:1 - a, constitutionality of a statute. See In the Matter of Bordalo & Carter, 164 N.H. We exercise de novo review of the trial court’s ruling on the

on both points. the statute and the rule, the statute must prevail. We agree with the defen dant read in harmony with Rule 98; and (2) to the extent there is a conflict between does not usurp or impair an essential function of the judiciary, and (b) can be I, A rticle p. 3 37 of the New Hampshire Constitution because: (1) the statute (a) On appeal, the defendant argues that RSA 604:1 - a does not violate P art

moot. (2012) (quotation omitted). Accordingly, we c onclude that this case is not Superintendent, Strafford County House of Corrections, 16 p. 3 3 N.H. 515, 518 cases that “are capable of repetition, yet evading review.” Fischer v. find that this ca se satisfies the familiar exception to the mootness doctrine for than the time required for briefing, argument and decision in this court, we indictment after the case is bound over to superior court normally is far less p. 4 4

judiciary absolutely necessary to carrying out its assigned responsibilities under the constitution. prosecutor’s discovery obligations, does not involve a similar intrusion into a core function of the (emphasis added). The statute at issue in this case, which deals with the timing of the to function effectively and do its job of administering justice.” LaFrance, 12 p. 4 4 N.H. at 179 - 80 officers of the court and the environment of the court is a power absolutely necessary for a court power of the judiciary to control its own proceedings, the conduct of participants, the actions of the physical conduct of persons appearing in the state’s courtrooms. As we explained, “[t] he notwithstanding the objection of the presiding judge, limited the power of the judiciary to control at issue in that case, which required that police officers be permitt ed to wear firearms in court control their own proceedings. LaFrance, however, is readily distinguishable because the statute violates the separation of powers doctrine because it interferes with the power of the courts to The State also relies upon State v. LaFrance, 124 N.H. 171 (1983), to argue that RSA 604:1 - a 1

contained in [PSAE] with respect to evidentiary rules, but did not find that the “Petition of S. N.H. Med. Ctr. merely restricted the applic ation of the analysis :10 (2007) as akin to evidentiary rules] is correct”). The State argues that deciding, that the plaintiff’s characterization [of the provisions of RSA 519 - B:8 as the equivalent of rules of evidence. See id. at 327 (“we assume, without viewed the challenged provisions of the medical injury screening panel statute Southern New Hampshire Medical Center on the grounds that in that case we Nonethel ess, the State seeks to distinguish this case from Petition of

“unnecessarily broad.” Petition of S. N.H. Med. Ctr., 16 p. 4 4 N.H. at 328. and its discussion of the separation of powers doctrine used language that was PSAE was an advisory opinion, which does not constitute binding precedent, recently explained in Petition of Southern New Hampshir e Medical Center, 50, 61 (March 2001) (hereinafter “Judicial Rule - Making”). However, as we Powers in New Hampshire: The Need for Constitutional Reform, 42 N.H.B.J. 44, N.H. at 569 - 71; see also Lynn, Judicial Rule - Making and the Separation of power to make procedural law, including rules of evidence. See PSAE, 141 of powers provision of the State Constitution granted the judiciary the exclusive Winberr y v. Salisbury, 74 A.2d 406 (N.J. 1950), in opining that the separation that in PSAE we followed the minority view exemplified by cases such as support of its constitutional challenge to RSA 604:1 - a. There can be no doubt 1 Like the trial court, the State relies primarily on the PSAE decision in

(2010). inherent functions” of another branch. State v. Merrill, 160 N.H. p. 4 467, 472 occur, the offending branch must act to “defeat or materially impair the usurps an essential power of another.” Id. (quotation omitted). For this to required.” Id. (quotation omitted). Art icle 37 “is violated only when one branch government and that the erection of impenetrable barriers among them is not practical matter, there must be some overlapping among the three branches of 327 (2012) (quot ation omitted). “Instead, it expressly recognizes that, as a great departments of government.” Petition of S. N.H. Med. Ctr., 164 N.H. 319, “contemplates no absolute fixation and rigidity of powers between the three N.H. C ONST. pt. I, art. 37. We have repeatedly observed that this provision p. 5 5

N.H. at 328 - 29. exercised separately by each level of court, in this court. See Petition of S. N.H. Med. Ctr., 164 to consolidate the judiciary’ s pre - existing rule - making power, which had theretofore been Southern New Hampshire Medical Center makes clear, the purpose of Article 73 - a was simply As the colloquy between Delegates Gross and Nighswander that we quoted in Petition of 3 Fire Ins. Co., 107 N.H. 267, 268 - 69 (1966) (quotation omitted). of general jurisdiction” was well recognized in New Hampshire. Nassif Realty Corp. v. National Long before the adoption of Part II, Article 73 - a, “[t]he inherent rule - making authority of courts 2

court procedure in general. Thus, the mere fact that RSA 604:1 - a is a statute Med. Ctr., 164 N.H. at 329 - 30, is not limited to evidentiary matters but covers authority with the judiciary to regulate court procedure,” Petition of S. N.H. foster any such uncertainty, we now clarify that “the legislature[’ s] share[d] practice and procedure would be called into question. Having no desire to sections of the Revised Statutes Annotated that address matters o f court power to enact laws addressing judicial procedure, innumerable long - standing observed at oral argument, were it truly the case that the legislature lacked forbids it” (emphasis added)). Indee d, as defendant’s counsel correctly defendant “unless there is some statute of this state or rule of procedure which power to order pre - trial discovery of sketch and photograph prepared by statute.”); L a C oss v. Lebanon, 78 N.H. 413, 417 (1917) (holding that court had courts have no authority to dispense with any of the requirements of the the statutes on that subject from the first organization of the courts, and the practice of taking depositions in New Hampshire has always been governed by A rticle 73 - a. See, e.g., Cater v. McDaniel, 21 N.H. 231, 232 (18 p. 5 50) (“The court procedure had been recognized by this court long before the adoption of The authority of the legislature to enact statutes addressing matters of

exclusive.” I d. at 329 (emph asis added). 3 that the authority of the judiciary to create procedural rules was intended to be 328 - 29, and the “citizens voting on the 1974 amendment were not informed authorit y over court procedures, see Petition of S. N.H. Med. Ctr., 164 N.H. at the amendment make s clear that it was not intended to abridge legislative is to be exclusive, but the record of the constitutional convention that proposed amendment contain no language indicating that the court’s rule - making power explicitly codified this court’s rule - making power. Not only does that 2 amendment that added Part II, Article 73 - a to the State Constitution, which discussion about the constitutional history surrounding the adoption of the decline to follow PSAE ’s reas oning. In particular, the State overlooks our matter, the State’s argument fails to take account of the analysis that led us to Center dealt with what we assumed to be legislation regarding an evidentiary Although it is true that Petition of Southern New Hampshire Medical

court practices and procedure.” We disagree. case was overruled or inapplicable with respect to rules which relate only to p. 6 6

Appx. A. disclosed within ten days after entry of a not guilty plea. See Sup. Ct. Order of Feb. 20, 2014, Super Ct. Crim. R. 98, a pproved in February 2014, all of the specified discovery materials must be Accordingly, Rule 98 is now cited as Super Ct. Crim. R. 98. Under temporary amendments to of the State of New Hampshire Applicable in Criminal Cases Filed in Superior Court.” issue in this opinion, were renamed, effective October 1, 2013, as the “Rules of the Superior Court The Rules of the Superior Court of the State of New Hampshire, which include Rule 98 that is at 4

request for alimony to be filed for up to five years after the divorce”). alimony in the original divorce proceedings, whereas RSA 458:19 permits a that former Superior Court Rule 185 “specifies the timing of a request for not addressing the matter of pre - indictment discovery at all. See id. (holding p. 6 630, 635 (2007), we conclude that the rule can sensibly be construed as simply court rule whenever possible, In the Matter of Maynard & Maynard, 155 N.H. Support”). Rather, consistent with our practice of harmonizing a statute and a guardian ad litem or any state or federal officials outside of the Office of Chi ld domestic relations cases] always be granted, without leave of court, to the “[n]othing in RSA 458:15 - b, I, requires that access [to financial affidavits in Associated Press v. State of N.H., 153 N.H. 120, 144 (2005) (noting that superior court from ordering discovery prior to the return of an indictment. Cf. defendant has been indicted. However, no provision of Rule 98 prohibits the rule obviously comes into play with re spect to felony charges only after the indicted by the grand jury, see N.H. C ONST. p t. I, a rt. 15; RSA 601:1 (2001), the required to enter a plea to a felony charge unless and until he has been defendant. See Super. Ct. R. 98 (A)(1),(2). Since a defendant cannot be 4 either ten or thirty calendar days after the entry of a not guilty plea by the that the State provide most discovery materials specified in the rule within At the time of the trial court’s ruling, Superior Court Rule 98 required

is correct. the superior court grant pre - indictment discovery in all cases. Neither premise 98 prohibits pre - indictment discovery; and (2) that RSA p. 6 604:1 - a mandates that fails because it is based on two faulty premises: (1) that Superior Court Rule characterizes as “an essential power of the judiciary.” The State’s argument superior court ’ s ability to regulate discovery, a function that the State falls into this prohibited category of legislation because it interferes with the come before the courts.” Id. at 330. The State maintains that RSA 604:1 - a fairly and impartially and to protect the constitutional rights of all persons who compromise the core adjudicatory functions of the judiciary to resolve cases The legislature may not, for example, enact procedural statutes that Center, however, “there obviously are limits on how far the legislature may go. As we al so made clear in Petition of Southern New Hampshire Medical

powers doctrine. that regulates court procedures does not render it violative of the separation of p. 7 7

timing of such depositions is left to the court’s discre tion. deposition of expert witnesses in felony cases, see State v. Martin, 142 N.H. 63, 65 (199 p. 7 7), but the RSA 517:13, III, which applies to expert witnesses, does not give the court discretion to deny the 5

That being so, the legislature’s authority, as primary repository of the law ability to regulate discovery on a case - by - case basis as justice may require. discovery to that available post - indictmen t, the statute preserves the courts’ functions of the judiciary, particularly since, by limiting pre - indictment discovery materials prior to indictment compromises the core adjudicatory persuasive argument as to how or why affording an accused person access to courts.” Petition of S. N.H. Med. Ctr., 164 N.H. at 330. The State offers no and to protect the constitutional rights of all persons who come before the adjudicatory functions of the judiciary to resolve cases fairly and impartially procedure is precluded only if the legislation at issue “compromise[s] the core the rule. As stated previously, legislative power to address matters of court allowance of pre - indictment discovery), we conclude that the statute trumps after indictment, whereas RSA 604:1 - a esta blishes the default position of a default position that generally disallow s discovery to a felony defendant until statute and the rule (insofar as Rule 98 can be viewed as implicitly establishing Additionally, to the exte nt that there is any residual tension between the

of ‘good cause. ’” required, it is free to request that discovery be ‘deferred’ based upon a showing a particular case, believes that pre - indictment discovery should not be indictment discovery. Thus, we agree with the defendant that, “[i]f the State, in circumstances of the particular case, in the same manner as it regulates post power to regulate pre - indictment discovery, tailoring it to the facts and indic tment discovery as exist post - indictment, the statute preserves the court’s Because RSA 604:1 - a grants an accused only such rights to pre -

satisfied). 5 the defendant, in any criminal case” upon finding that statutory criteria are discretion may permit either party to take the deposition of any witness, except other order as is appropriate.”); RSA 51 p. 7 7:13, II (stating that “[t]he court in its discovery required hereunder be denied, restricted or deferred, or make such sufficient showing of good cause, the court may at any time order that achieve justice in the particular case. See Super. Ct. Crim. R. 9 p. 8 8(J) (“Upon a parties or individuals (the defendant, the State, victims, witnesses, etc.) and to timing of discovery so as to balance the competing interests of all affected of which generally pre serve the court’s discretion to regulate the scope and depositions are governed by Rule 98 and RSA 517:13 (2007), respectively, both 604:1 - a (emphasis added). And subsequent to indictment, discovery and rights to discovery and deposition as he has subsequent to indictment.” RSA contrary, the statute specifically states that the accused “shall have t he same discovery in every case in which a felony charge is bound over to it. On the Nor does RSA 604:1 - a require the superior court to grant pre - indictment 8

legislature, in the form of amendment or repeal of the statu te. discovery materials prior to the return of an indictment, its remedy is to seek relief from the If the State believes that RSA 604:1 - a unwisely establishes the presumptive availability of 6

DALIANIS, C.J.