The NH Supreme Court

At the top of New Hampshire's judicial branch, five justices comprise the state Supreme Court. They don't have as much power as the illustrious name would imply, but they do still have quite a bit. On today's episode, we walk through the life of a supreme court case.


NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Ben Henry [00:00:00] In 2004 a man named Geoffrey Rallis slipped and fell on a wet floor inside a Market Basket. Not an unusual event in the grand scheme of things.

  [00:00:08] It was a nasty fall though he fractured his hip Geoffrey sued the grocery store for negligence which again isn't too unusual.

 [00:00:16] The grocery store is supposed to be kept reasonably safe for customers and if it's not the store might be responsible for someone getting hurt. Here's what was unusual. It was not just a puddle of water on the floor of Market Basket that day. There were also some green beans. The scene of the incident. The produce section. And you might be thinking who cares. Well the New Hampshire Supreme Court cares.

 [00:00:44] Hello and welcome to Civics 101: New Hampshire. I'm Ben Henry. Today New Hampshire like every other state has its own Supreme Court. It's not the all powerful arbiter of justice that the name would imply. But in cases like Geoffrey's it does get the final word.

 [00:01:03] So here's the question that was at the heart of that case. It all came down to a jury the point of a jury of course is that it's just regular people regular people don't know the ins and outs of the law so the judge has to get them up to speed. They type up a little crash course in the relevant laws. It's called the jury instructions and it's where the jury learns exactly what their job is the decision they need to make. In Geoffrey's case the jury instruction said Market Basket is only responsible if they knew about that spill on the floor or if the spill had been there for so long that they should have known about it. The jury decided no. There's no evidence that the spill had been there very long. Market Basket didn't know it's not their fault. Geoffrey lost his case. But that was not the end.

 [00:01:55] And to explain why I want to explain a little bit about how the judicial branch here in New Hampshire actually works and I've brought in somebody who knows all about it. How many cases have you like brought before the New Hampshire Supreme Court.

Stephanie Hausman [00:02:09] I have probably worked on over a hundred appeals in the New Hampshire Supreme Court.

 Ben Henry [00:02:14] This is Stephanie Hausman she's a public defender. So the state judicial branch is basically just all the courts here in New Hampshire.

 Stephanie Hausman [00:02:21] So there are circuit courts and they tend to take cases that are less serious criminal and civil cases and Family Court matters.

 Ben Henry [00:02:32] Most cases wind up in circuit court everything from a dispute with your landlord to a restraining order to contesting a speeding ticket.

 Stephanie Hausman [00:02:39] Then there are superior courts there's one in every county but two in Hillsborough that is where jury trials take place.

 Ben Henry [00:02:46] And these are the big cases felonies like theft or selling drugs or disputes between individuals in which a lot of money is on the line. Hillsborough has to so that Nashua and Manchester each have their own.

 Stephanie Hausman [00:02:59] So those are the lower courts in our state. They're sort of coequal. Although sometimes a case can start in the circuit court and then sort of bump up to the Superior Court. But you can appeal cases from either court to the New Hampshire Supreme Court.

 Ben Henry [00:03:14] This whole system of courts is only for cases that involve New Hampshire law. If you go to trial for breaking a federal law you're swimming in different waters you'll have to a federal court at the very top of that federal court system is the United States Supreme Court.

 [00:03:32] That is not what we're talking about here. Our Supreme Court is just for New Hampshire.

 Stephanie Hausman [00:03:38] But where there are open questions about does the Constitution mean you can do this or you can't do this and theU.S. Supreme Court has not decided it. New Hampshire Supreme Court can decide the question.

 Ben Henry [00:03:51] Pretty much every Supreme Court case starts with an appeal an appeal is when somebody involved in a case in the lower courts doesn't like the way the judge ruled they have the right to ask for a review by someone else. And the New Hampshire Supreme Court is that someone else. They review the case and decide whether the judge made a mistake.

 Archival [00:04:14] This is case number two thousand eight zero point zero Geoffrey J Rallis versus Demoulas Super Markets Inc

 Ben Henry [00:04:22] So Geoffrey the guy who fell down in Market Basket he appealed his case. He said the jury got bad instructions

 Archival [00:04:31] May it please the court. My name is Robert Shaines and I'm here at large. Of course we represent the plaintiff in this case.

 Ben Henry [00:04:38] It's not just about how long the spill had been on the floor he said. It's a question of whether Market Basket should have anticipated that a spill would have happened there in the first place.

 Archival [00:04:49] Was that they knew that the way the pricing was displayed it tended to wind up on the floor.

 [00:04:57] This is where the green beans come in Market Basket has got to know that green beans are going to end up on the floor of the produce section. So there should be more careful about cleaning it up. That was Geoffrey's argument.

 Archival [00:05:10] The trial court gave the following instruction.

 Ben Henry [00:05:15] And the Supreme Court was not obligated to even hear him out though.

 Stephanie Hausman [00:05:19] There are classes of cases that are mandatory appeals which if you file the document the Supreme Court is going to take it and then there are discretionary appeals where you have to sort of sell the case to the Supreme Court and they decide I will take it I won't take it.

 Ben Henry [00:05:33] The court tends to take most of the cases they get. They can turn away some cases that have to do with parole or probation or landlord issues among other things before the court gets down to business. Some clerical work has to happen staff create transcripts of all the lower court hearings on the case. They make a record of everything anyone said.

 Stephanie Hausman [00:05:55] Then the Supreme Court says OK appellant you have X number of days to file your brief and a brief is just a written document that says these are the issues that were appealing. Here's the sort of factual basis that you need to know and then here's the law and here's why you should come to the result that we want is the brief public at the time it's filed in almost all cases except those that are confidential so this is the thing that you might see quoted in news stories. Yes. And then the especially so the the person who's not appealing has a certain number of days writing a legal brief is a very particular art form.

 Ben Henry [00:06:35] The wording needs to be extremely precise. Laws can be fickle but the brief also must be persuasive and needs to tell the story of the case. I actually talked to a former Supreme Court justice about this. What makes a great chief.

 John Broderick [00:06:48] The people who understood brief right and if they had five issues they wouldn't raise all of the three back story a moment.

 Ben Henry [00:06:56] John Broderick sat on the court for 15 years. He actually was there for one of the biggest cases in recent decades. The Clairemont education lawsuits. That's when the court decided the state had to spend more money on public nation. Huge deal anyways.

 Ben Henry [00:07:11] Supreme Court justices spend a whole lot of time reading briefs.

 John Broderick [00:07:15] And say youd get 64 to 70 briefs all of your office and you try to keep up with the work that just came in the door it's overwhelming at times.

 Ben Henry [00:07:24] He can see why Brodrick prefer to short interesting briefs.

 Stephanie Hausman [00:07:27] The Supreme Court then takes some time to decide can we decide it just on the papers or do we want to have the lawyers come in for an oral argument.

 Ben Henry [00:07:36] Those of us who appreciate a good courtroom drama. Yes. This oral argument we're talking about for us is what we envision as like the heart of the judicial process. Take me inside the room on that day. First roll where does this happen.

 Stephanie Hausman [00:07:50] The Supreme Court is on Charles doe drive in Concord. It is a charming building you should go there. I'm going to give tours kind of like a tour. There's almost nothing to see so you walk in the door. There's a clerk's office there's public bathrooms there is the court room. The state law library is also attached so you could go there. It's the end of the winter now but I love going in the winter because the court room has a fireplace and they will sometimes have a crackling fire in the fireplace for winter arguments which is very charming.

 Ben Henry [00:08:22] And so who is in the room during these oral arguments.

 Stephanie Hausman [00:08:26] Almost nobody like anyone can come almost all of them are public and they post their argument list every month but very few people come lawyers from each side get 15 minutes to talk.

 Archival [00:08:41] Particularly Simpson versus wal mart stores.

 Ben Henry [00:08:44] A yellow light comes on when your time is almost up. Red light comes on when you have overstayed your welcome at the podium.

 Archival [00:08:51] Is the burden shifting rule. There's a recurring risk rule which maine a couple of other states.

 Ben Henry [00:08:58] I mean does this ever get dramatic or sort of you know like intense.

 Stephanie Hausman [00:09:04] It is usually pretty low key legal stuff. It's very rarely dramatic in the sense that oh my gosh you know there's there's not a lot of surprises. The justices are very good about reading through the entire briefs beforehand so you don't start your argument from square one and be like this is a case about a level you know they don't want that they've read it all. They've taken detailed notes.

 Ben Henry [00:09:28] So given that you as the lawyer what do you choose to do with that 15 minutes.

 Stephanie Hausman [00:09:34] Usually there might be things that I definitely want to say about what the other side has said in their brief but usually I just want to get them to understand sort of the strongest points about my argument.

 Ben Henry [00:09:47] The argument in Geoffrey's case mostly revolved around which a set of rules that were relevant. His lawyer brought up another case from the New Hampshire Supreme Court back in 1961 that bore remarkable similarities to Geoffrey's instead of a supermarket. The scene was a porch instead of green beans. It was a pear. Somebody managed to slip on a pair. The Court back then said hey those papers always fall off that tree in that same spot. You should have known this would happen. Pears green beans are all the same in the eyes of the law. But the trial judge when they were giving jury instructions they didn't mention the pear School of Thought so the jury couldn't make a fair decision. They didn't have all the information. That's the main point Geoffrey his lawyer made that day.

 Stephanie Hausman [00:10:38] But really the most important thing for oral argument is for the justices to ask us questions that sort of push the limits of our argument.

 Archival [00:10:47] Let me ask question if you're correct that that should be the test.

 Ben Henry [00:10:51] You might recognize this voice. It's Broderick.

 Archival [00:10:53] What do they do to avoid liability. They could do things they normally go in. How does he match not getting maps in front of the area with a new product to the.

 Ben Henry [00:11:05] There's no time limit on the questions just a panel of legal experts grilling another legal expert.

 Stephanie Hausman [00:11:11] They're all very polite. And when you do it for a long time you're just sort of you know where they're going to press on your argument where there's any weakness. And so you know what to prepare for. And so for every argument that I do most of the questions are questions that I've already anticipated. It must be kind of exciting. It is. I wish it was not bounded by time but when they are very engaged it's a really fun process.

 Ben Henry [00:11:38] This process is not at all the same one that lower courts go through the Supreme Court does not start from scratch and look at all of the facts of the case. All they do is retrace the footsteps of the lower court judge to check whether they made any mistakes.

 Stephanie Hausman [00:11:55] I mean I think a lot of people think about appeals as being an all over fairness review that the Supreme Court because they're the Supreme Court and they've got the most power. They look at everything they read everything. So they would get the police reports they would know what the witnesses would say the police interviews they would get all that stuff and they would decide whether this person in a criminal case should be guilty of this crime or not. And that is not at all what they do.

 [00:12:22] They only look at choices that the trial judge made when the trial judge was asked by one of the parties to make a decision.

 Ben Henry [00:12:30] In the green bean case the Supreme Court was not deciding whether Geoffrey had been treated fairly whether the grocery store had made some fundamental mistake they were making a smaller decision though still an important one about whether the lower court judge gave the jury a good crash course in the law. You can't just ask the Supreme Court to fix what you think is an unfair decision. It doesn't work like that. Is that frustrating for you in arguing these cases.

 Stephanie Hausman [00:12:59] It is frustrating. We have to sort of jump through all of these hoops to get to the outcome and I think the person might come into an appeal thinking I'm going to get this sort of they're going to look at everything and they're going to see that this is unfair. And what I end up focusing on might be this very discrete part of the case that to them feels very small but that's just the function of what an appeal is.

 Ben Henry [00:13:23] After all the briefs have been filed. The questions asked the court gets down to business making a decision. This is the part Stephanie Haussmann doesn't actually know a lot about this next part doesn't involve lawyers and it isn't public.

 [00:13:36] John Brodrick of course knows all about this process.

 John Broderick [00:13:39] So that the two cases could take her reach. When does it come from. Truman had talked about the two cases we just heard. And you were the judge would express your views.

 [00:13:50] You say from juniors here.

 Ben Henry [00:13:52] This recess after oral argument this is when the justices tossed around some ideas and they come to a rough understanding of how the majority of them would vote on this case. Each case is then assigned it to one Justice who is then responsible for writing an explanation of the court's decision which will be called the majority opinion.

 John Broderick [00:14:11] You meet with your law clerks. If you did it as i did it you'd say we talked about this case this is what it involves this is what the court decided. And then the law clerks go about doing drafts and they come in periodically. Show me where they were we'd talk about it.

 Ben Henry [00:14:27] Every Supreme Court justice kind of runs their own miniature law firm. Each justice has a couple of clerks who might be on their way to becoming judges themselves. And they do much of the actual research and writing that goes into a Supreme Court decision.

 John Broderick [00:14:41] When I was an associate justice which I was for eight years I had two law clerks. It was a very collaborative process of my term but at some point. You would get a draft that you were happy with and then circling to the other judges and twice a month we would have case conference just the judges and we go around and have all the opinions be on our agenda and we'll talk about them.

 Ben Henry [00:15:04] More than half the time Broderick says the justices all agreed on this first draft of the opinion and that was that. Other times they would ask for some changes.

 John Broderick [00:15:14] And so it would be held and you'd work with a person and then two weeks or months they come back.

 Ben Henry [00:15:20] And this is where the justices collaborate with each other and where each justice brings their own unique perspective to the table. Now the Supreme Court is not a diverse institution. There have been three women to sit on the court in its entire history. The first was in the 90s. And every justice has been white.

 [00:15:38] When it comes to political diversity Broderick says. The New Hampshire Supreme Court feels much less political than the big Supreme Court theU.S. Supreme Court. Did you feel as though you got along with your colleagues even when you disagreed with.

 John Broderick [00:15:53] Absolutely. i liked my colleagues I felt very comfortable sometimes saying i disagree im dissenting they had the same reservation sometimes. But that's how it should work. It was intellectual exercise important. But it was not personal.

 [00:16:09] Each justice is appointed by the governor and the executive council and they get to keep the job up until age 70. Then they have to retire in some other states. Justices are elected by the public which means they have to act a little bit more like a politician. If they make an unpopular decision they might lose re-election. New Hampshire justices don't have to worry about being popular just about being rights.

 John Broderick [00:16:32] And even though it wouldn't be banner headlines it was affecting its future.

 Ben Henry [00:16:37] This whole process takes about a year from filing an appeal to getting a decision. Once the Supreme Court makes their decision with only a few exceptions that's the final word. It's over. The case is done. It doesn't just go into a file cabinet though in the future. Lower court judges refer back to Supreme Court cases for guidance.

 Stephanie Hausman [00:16:57] And so when the Supreme Court then decides what a law means or interprets a statute that helps says precedent going forward as being like oh OK we know now that this statute does apply to these situations but doesn't apply to these situations. There are other situations like this sort of constitutional law questions where again every situation that comes up is unique. And so they're deciding a unique set of facts and they're saying this violates the constitution setting a precedent is a big deal.

 Stephanie Hausman [00:17:31] The justices are telling future lawyers and judges what the words of the state constitution and the state laws mean.

 John Broderick [00:17:39] You know my view is I don't do world peace when I don't need it. And sometimes lawyers would come in and ask for world peace. and youd say. You don't really need world peace do you to win what do you need to win. Because the longer i sat there i realized the nuances in facts and law. And I realize that I only really had to decide the case in front of me. I didn't have to decide cases that might come in the future. I didn't need to make sweeping pronouncements. I was also sensitive to the fact that I was not a legislator.

 Ben Henry [00:18:12] One way that the court makes absolute sure that they're doing the right thing is that they try really hard to get all five justices to agree on one decision.

 John Broderick [00:18:21] And so when you're trying to give direction to people and businesses in practice in your state it's really important to the extent possible to speak with five voices.

 Ben Henry [00:18:35] Geoffrey's case after the oral arguments and after one justice and wrote of an opinion they did all come to an agreement.

 [00:18:43] Geoffrey had a point. The lower court judge had made a mistake. They overturned the decision. Geoffrey won his lawsuit.


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