SUPREME COURT UNITED STATES OF AMERICA,. 2013-0825 . STATE OF NEW HAMPSHRIE . SUPREME COURT . UNITED STATES OF AMERICA, Appellant, v. RYAN HOWE, Defendant-Appellee. Certified Question

No. 2013-0825

STATE OF NEW HAMPSHRIE SUPREME COURT

UNITED STATES OF AMERICA,

Appellant,

v.

RYAN HOWE,

Defendant-Appellee.

Certified Question from the United States Court of Appeals

for the First Circuit

_______________________

APPELLANT’S BRIEF _______________________

JOHN P. KACAVAS United States Attorney Seth R. Aframe, Assistant United States Attorney Mass. Bar No. 643288 (Admitted Pro Hac Vice) United States Attorney's Office 53 Pleasant Street Concord, NH 03301-3904 (603) 225-1552 [email protected]

mailto:[email protected]

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... iv I. STATEMENT OF ISSUE ON APPEAL ............................................................. 1 II. RELEVANT PROVISIONS ................................................................................ 1

A. New Hampshire Revised Statute Annotated 500-A:7-a(V) ................... 1

B. New Hampshire Revised Statute Annotated 500-A:6, III(b)(4) ............ 1 C. New Hampshire Revised Statute Annotated 651:5 ................................ 1

III. STATEMENT OF THE CASE ............................................................................ 2 IV. STATEMENT OF FACTS ................................................................................... 2 V. SUMMARY OF ARGUMENT ............................................................................. 4 VI. ARGUMENT ....................................................................................................... 7

A. Under the Plain Language of the Statute, an Unannulled Felony Conviction Prohibits Jury Service ...................................................................... 7

B. An Annulled Conviction May Nevertheless Be Ineligible For An Annulment Under New Hampshire Law ......................................................... 10 C. The Plain Construction of the Juror Qualification Statute Also Accords with the Structure of the New Hampshire Annulment Statute and Eliminated a Possibly Ambiguity that Would Otherwise Exist for New Hampshire Prior Convictions ........................................................................... 13 D. The Defendant’s Construction of the Juror Qualification Statute Leads to Absurd Results .............................................................................................. 19 E. The Legislative History Does Not Support the Conclusion that an Eligible Conviction is Sufficient to Restore Jury Service ................................ 20

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VII. CONCLUSION .................................................................................................. 22 VIII. REQUEST FOR ORAL ARGUMENT .............................................................. 22 IX. APPENDED OPINIONS................................................................................... 23 CERTIFICATE OF SERVICE ..................................................................................... 23 ADDENDUM ............................................................................................................... 24

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TABLE OF AUTHORITIES

Cases

Astro Spectacular, Inc., 138 N.H. 298 (1994) ............................................................. 10 Cagan's, Inc. v. New Hampshire Dep't of Revenue, 126 N.H. 239 (1985) ................... 7 Case of Welts, 136 N.H. 588 (1993) ............................................................................... 8 Hayes v. Hanson, 12 N.H. 284 (1841) ......................................................................... 13 In re Garrison Place Real Estate Inv. Trust, 159 N.H. 539 (2009).............................. 7 In re Geekie, 157 N.H. 195 .......................................................................................... 19 In re Gray, 160 N.H. 62 (2010) ...................................................................................... 7 In re Hoyt, 143 N.H. 533 (1999) .................................................................................... 8 Khabbaz v. Commissioner of Social Security, 155 N.H. 798 (2007) ............................ 7 Pennelli v. Town of Pelham, 148 N.H. 365 (2002) ...................................................... 10 Petition of State, 159 N.H. 456 (2009) .......................................................................... 7 State Employees Ass'n of N.H. v. State, 127 N.H. 565 .............................................. 21 State v. Baker, 64 N.H. 296 ......................................................................................... 14 State v. Michael B., 124 N.H. 590 ............................................................................... 15 State v. Patterson, 145 N.H. 462................................................................................. 15 State v. Rothe, 142 N.H. 483 (1997) .............................................................................. 8 Unit Owners Ass'n of Summit Vista Lot 8 Condominium v. Miller, 141 N.H. 39 (1996)...................................................................................................................... 8 United States v. Howe, 736 F.3d 1 (1st Cir. 2013) ....................................................... 2

Statutes

18 U.S.C. § 922(g)(1) ...................................................................................................... 2 N.H. Rev. Stat. Ann. § 500-A:6................................................................................ 1, 20 N.H. Rev. Stat. Ann. § 500-A:7.............................................................................. 1, 3, 8 N.H. Rev. Stat. Ann. § 651:5 ............................................................................... passim R.I. Gen. Laws § 12-1.3-2(a) ........................................................................................ 11

I. STATEMENT OF ISSUE ON APPEAL. New Hampshire law provides that a "juror shall not have been convicted of

any felony which has not been annulled or which is not eligible for annulment under

New Hampshire law." Under this statute, is a felon, whose conviction is eligible for

annulment, under New Hampshire law (i.e., not categorically barred from seeking

an annulment) but who has not received an annulment allowed to sit on a jury? See

United States v. Howe, 12-cr-101-JD, U.S.D.C., D.N.H., Docket Number 8,

Appendix (Appx.) at 37-54.

II. RELEVANT PROVISIONS.

A. New Hampshire Revised Statute Annotated 500-A:7-a(V), Qualifications of Jurors, provides:

A juror shall not have been convicted of any felony which has not been annulled or which is not eligible for annulment under New Hampshire law.

B. New Hampshire Revised Statute Annotated 500-A:6, III(b)(4),

Juror Qualification Form, provides:

The clerk shall prepare the juror qualification form, subject to approval by the court. The juror qualification form shall require the prospective juror to specify if he is a convicted felon whose conviction has not been annulled or whose conviction is not eligible for annulment under New Hampshire law.

C. New Hampshire Revised Statute Annotated 651:5,

Annulment of Criminal Records.

Because of the length of this statute, this provision is reproduced in the appendix. See Appx. at 4-8.

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III. STATEMENT OF THE CASE. In August 2012, a federal grand jury in the District of New Hampshire

indicted the defendant for being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1) and possessing an unregistered firearm in violation of 26 U.S.C.

§ 5641, et seq. Addendum to United States' Brief (Add.) at 1. The defendant then

filed a motion to dismiss the felon-in-possession count on the ground that he was

not a prohibited felon law under federal because all of his civil rights had been

restored, including his right under New Hampshire law to sit as a juror. Appx. at

37-54.

Following briefing on the motion, the federal district court issued an order

dismissing the § 922(g) charge, concluding that the defendant was able to sit as a

New Hampshire juror and therefore was not a felon as defined by federal law. Add.

at 1-6. Thereafter, the United States filed an interlocutory appeal of this order to

the United States Court of Appeal for the First Circuit. The parties briefed this

issue, and the First Circuit held oral argument. Shortly after the argument, the

First Circuit certified to this Court the question presented above. United States v.

Howe, 736 F.3d 1 (1st Cir. 2013); Add. at 7-16.

IV. STATEMENT OF FACTS.

The federal felon-in-possession charge against the defendant was predicated

on the defendant's 1995 New Hampshire conviction for carrying a firearm without a

license, a class B New Hampshire felony. The defendant finished serving his

sentence on this prior conviction in late 2000. The defendant, however, never

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sought to have this conviction annulled, even though the conviction was eligible for

annulment under New Hampshire law. Add. at 4.

Based on these undisputed facts, the defendant moved to dismiss the felon-

in-possession count, arguing that he was not a prohibited felon under federal law

because New Hampshire had restored his civil rights -- the right to vote, the right to

hold public office, and the right to serve on a jury. Appx. at 37-54. By operation of

New Hampshire law, the defendant's right to vote and hold office had been restored.

Thus, the only issue was whether the defendant's right to sit as a juror had been

restored.

The New Hampshire juror qualification statute provides that "a juror shall

not have been convicted of any felony which has not been annulled or which is not

eligible for annulment under New Hampshire law." N.H. Rev. Stat. Ann. § 500-A:7-

a(V). The defendant argued that this statute restores a convicted felon's right to sit

as a juror if either of two conditions is met: (1) the felon has received an annulment

of his prior conviction or (2) the felon is eligible under New Hampshire law to have

the conviction annulled, even if he has not done so. Appx. at 39-42. The United

States disagreed, arguing that a felon was disqualified from jury service if either (1)

his conviction was ineligible for annulment under New Hampshire law or (2) the

conviction, even though eligible, had not been annulled. Id. at 55-58.

The district court agreed with the defendant, concluding that the defendant's

right to sit as a juror was restored because his conviction was eligible for an

annulment under New Hampshire law, even though it had not been annulled. Add.

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at 5-6. To reach this result, the court invoked the rule of statutory construction

providing that, when possible, statutes should be construed to avoid a reading that

would render any portion superfluous, void or insignificant. Id. The court

explained that the United States' reading rendered the "is not eligible for an

annulment under New Hampshire law" clause of the juror qualification statute

superfluous because, by definition, a person who is ineligible for an annulment is a

person whose conviction has not been annulled. Id. at 5. Thus, the court concluded

that the plain meaning of the statute permits a felon to serve as a juror "if his

conviction is eligible for annulment," even if he has not, in fact, obtained an

annulment. Id. at 5-6.

V. SUMMARY OF ARGUMENT.

The plain language of the juror qualification statute precludes from jury

service a person with an unannulled felony conviction, even if the conviction is

eligible for annulment under New Hampshire law. The statute establishes a result

-- disqualification from jury service -- and enacts two conditions separated by the

disjunctive "or" which triggers the disqualification result. The conditions are (1) a

conviction "which has not been annulled" or (2) a conviction “which is not eligible for

annulment under New Hampshire law”. Thus, under the plain language of the

statute, a person with an unannulled conviction (the first condition) is disqualified

from jury service and so is a person with a conviction that is not eligible for

annulment under New Hampshire law (the second condition).

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Contrary to the district court's analysis of the statute, this construction is not

redundant because there are people with annulled convictions (thereby avoiding the

first disqualification condition) that are nevertheless ineligible for an annulment

under New Hampshire law (thereby triggering the second disqualification

condition). This could occur in at least two circumstances. First, a person with an

out-of-state conviction could have the conviction annulled by the convicting state,

even though that conviction would be ineligible for annulment under New

Hampshire law. Second, a person with a New Hampshire conviction may have had

that conviction erroneously annulled by a New Hampshire court, and therefore,

even though the conviction was annulled, it would still be ineligible for annulment

under New Hampshire law. Thus, the "is not eligible for annulment under New

Hampshire law" clause independently bars from jury service people who have

obtained annulments of felony offenses, which, nevertheless, remain ineligible for

annulment under New Hampshire law.

Construing the juror qualification statute to disqualify people with both

unannulled but eligible convictions and ineligible convictions is consistent with the

same distinction that is drawn by New Hampshire's annulment statute. The

annulment statute sets forth a series of temporal and substantive requirements

that a felon must meet even to be eligible to petition for an annulment. It also sets

forth the process for adjudicating annulment petitions filed by felons who have met

the eligibility requirements.

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The annulment statute establishes four categories of convicted felons

(1) those who are categorically ineligible to participate in the annulment process

because they have not met the eligibility criteria; (2) those who are eligible to

participate in the annulment process, but have not sought an annulment; (3) those

who are eligible to participate in the annulment process and have done so

unsuccessfully; and (4) those who are eligible to participate in the annulment

process and have successfully obtained an annulment.

The jury qualification statute tracks the annulment statute by providing that

a person can only regain the right to serve on a jury by obtaining an annulment of

an eligible conviction (category four). It also makes clear that people, who are

categorically barred from seeking an annulment (category one), are barred from

jury service in the same manner as those who are eligible but have not obtained an

annulment (categories two and three).

Finally, allowing a person with an eligible but unannulled conviction to serve

as a juror (the argument advocated by the defendant) leads to an absurd result.

This would occur where two felons committed the same crime and engaged in the

same post-conviction conduct. If one of these felons sought but was denied an

annulment, he would be barred from jury service because his conviction would be

ineligible for annulment for three years under the New Hampshire annulment

statute. Meanwhile, the felon who avoided the annulment system entirely would be

allowed to sit as a juror. There is no logical reason that these two felons should be

7

treated differently, and yet this is precisely the result that defendant's construction

would produce.

VI. ARUGMENT.

The certified question asks whether the New Hampshire juror qualification

statute prohibits jury service by a felon whose conviction has not been annulled,

even though the conviction is eligible for annulment under New Hampshire law.

This question raises a pure issue of statutory construction over which this Court is

the final arbiter. Khabbaz v. Commissioner of Social Security, 155 N.H. 798, 800

(2007).

A. Under the Plain Language of the Statute, an Unannulled Felony Conviction Prohibits Jury Service. In matters of statutory construction, this Court places primary emphasis on

plain meaning. Cagan's, Inc. v. New Hampshire Dep't of Revenue, 126 N.H. 239,

247 (1985). Thus, "when undertaking statutory interpretation, [this Court] first

examine[s] the language found in the statute and where possible, . . . ascribe[s]

plain and ordinary meanings to the words used." In re Gray, 160 N.H. 62, 65 (2010)

(quotation omitted). In conducting this analysis, the Court "can neither ignore the

plain meaning of the legislation nor add words which the lawmakers did not see fit

to include." In re Garrison Place Real Estate Inv. Trust, 159 N.H. 539, 542 (2009)

(quotation omitted). Where the statutory language has a plain meaning, this Court

does not look beyond it for other indicia of legislative intent. Petition of State, 159

N.H. 456, 458 (2009).

8

A careful reading of the juror qualification statute demonstrates that the

existence of an unannulled felony conviction precludes jury service regardless of

whether the conviction is eligible for annulment under New Hampshire law. The

pertinent language of the juror qualification statute provides that "[a] juror shall

not have been convicted of any felony which has not been annulled or which is not

eligible for annulment under New Hampshire." N.H. Rev. Stat. Ann. § 500-A:7-

a(V). This plain language establishes a result -- disqualification form jury service.

This result is achieved if one of two conditions is met: (1) the prospective juror has

a prior felony conviction "which has not been annulled" or (2) the prospective juror

has a prior felony conviction "which is not eligible for annulment under New

Hampshire law." Id.

It is settled New Hampshire law that the legislature’s use of the word "or"

indicates the disjunctive. In re Hoyt, 143 N.H. 533, 535 (1999); State v. Rothe, 142

N.H. 483, 485 (1997); Unit Owners Ass'n of Summit Vista Lot 8 Condominium v.

Miller, 141 N.H. 39, 45 (1996); Case of Welts, 136 N.H. 588, 592 (1993). Thus, the

statute plainly provides that a person is disqualified from jury service if he or she

has a felony conviction that either (1) has not been annulled or (2) is ineligible for

annulment under New Hampshire law. The defendant in this case indisputably

falls into the first category -- he has a felony conviction for illegal gun possession

which has not been annulled. Thus, since the statute is written in the disjunctive

and the defendant falls into the first disqualification category, he is prohibited from

serving on a jury.

9

To advocate for the opposite result in the First Circuit, the defendant

proposed rewriting the statute by stripping the word "not" every time it appears.

Thus, the defendant proceeded as if the statute says, "A juror shall have been

convicted of any felony which has been annulled or which is eligible for annulment."

Or, otherwise stated, the right to jury service is restored to a convicted felon if the

prior conviction (1) has been annulled or (2) is eligible for annulment.

Using this made-up statute, the defendant argued that a person "is not

disqualified," (or otherwise stated, after eliminating the double negative, the right

to jury service is restored), where "a felony conviction has been annulled" or where

"the felony conviction . . . is eligible for annulment." Def. 1st Circuit Br. at 17-18.

Since there is no dispute that the defendant's conviction is eligible for annulment

under New Hampshire law, the defendant posited that his right to jury service had

been restored because the defendant fell into the second category, i.e., he had a

prior conviction that was eligible for annulment under New Hampshire law. Id. at

18-19.

The defendant’s construction would be correct if the statute had been written

without the word “not.” But this is not what the statute says. Rather, the result

worked by the statute is disqualification from jury service — not restoration. This

disqualification result occurs if a conviction has not been annulled or the conviction

is not eligible for annulment under New Hampshire law. Simply put, re-writing the

statute, as the defendant did, to eliminate "not" changes it from a statute describing

circumstances under which a person is prohibited from jury service to a statute

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defining when the right to jury service has been restored. Appeal of Astro

Spectacular, Inc., 138 N.H. 298, 300 (1994) (stating that court should not consider

what the legislature might have said when construing a statute).

This change makes all the difference. Here, the defendant was convicted of a

felony "which has not been annulled." Under the plain language of the juror

qualification statute as it actually reads, the defendant is disqualified from jury

service for this reason, even though his conviction is eligible to be annulled under

New Hampshire law. Accordingly, this Court should enforce the plain language of

the statute and conclude that the defendant is disqualified from jury service

because he has a conviction "which has not been annulled."

B. An Annulled Conviction May Nevertheless Be Ineligible For An Annulment Under New Hampshire Law. The federal district court rejected this plain language construction of the

juror qualification statute by invoking the cannon of construction counseling

against construing a statute "to have used superfluous or redundant words."

Pennelli v. Town of Pelham, 148 N.H. 365, 367-68 (2002). The district court invoked

this rule based on the notion that "a person convicted of one of the class of felonies

which can never be annulled [under New Hampshire law] would be, by definition, a

person whose felony conviction has not been annulled." Therefore, in the court's

view, the "not eligible for annulment under New Hampshire law" clause was

redundant under the United States' construction of the statute. Add. at 5.

This is not so. The district court failed to consider prospective jurors with

annulled out-of-state felony convictions which nevertheless are ineligible for

11

annulment under New Hampshire law. In this situation, contrary to the district

court's conclusion, a prospective juror could have an annulled conviction which still

is ineligible for annulment under New Hampshire law. Thus, the "which is not

eligible for annulment under New Hampshire law" prong of the statute has

independent meaning because it bars from service a potential juror who has an

annulled out-of-state conviction, which is nevertheless ineligible for annulment

under New Hampshire law.

Consider, for example, a potential New Hampshire juror with an obstruction

of justice conviction from Rhode Island. Rhode Island law allows a first time

offender to receive an annulment (called expungement in Rhode Island) for all

felony convictions, except crimes of violence. R.I. Gen. Laws § 12-1.3-2(a). Thus,

the prospective New Hampshire juror convicted of such an offense could have had

this conviction annulled by a Rhode Island court. Nevertheless, this conviction still

would be ineligible for annulment under New Hampshire law because New

Hampshire's annulment statute categorically bars the annulment of an obstruction

of justice felony offense. N.H. Rev. Stat. Ann. § 651:5, V.

Thus, as this straightforward example shows, there can be a prospective juror

with an annulled conviction, even though the conviction is ineligible for annulment

under New Hampshire law. Accordingly, contrary to the district court's analysis,

each aspect of the statute can independently disqualify a potential juror. The first

prong (the "which has not been annulled" clause) precludes from service a

prospective juror like the defendant, i.e., a person who has not received an

12

annulment of a conviction that is eligible for annulment under New Hampshire law.

The second prong (the "which is not eligible for annulment under New Hampshire

law" clause) precludes from service a prospective juror like the person described in

the example above, i.e., a person who has an annulled out-of-state conviction, which

nevertheless is ineligible for annulment under New Hampshire law.

Reading the statute this ways also provides an explanation for the

legislature's deliberate use of "under New Hampshire law" at the end of the second

prong of the statute but not the first. This language suggests that, regardless of the

jurisdiction from which the annulment was issued, New Hampshire law provides

the annulment eligibility standard as an independent basis for preventing a

potential juror from sitting.

There are obvious policy reasons for the legislature to have wanted this

result. The legislature presumably would not have favored allowing someone on a

New Hampshire jury who was convicted of such a serious crime that annulment

was not an option under New Hampshire law, e.g. obstruction of justice. Without

the "not eligible for annulment under New Hampshire law" clause, the legislature

would have ceded control of the quality of the New Hampshire jury pool to the

various annulment rules of the other states (and foreign countries). It is unlikely

that the legislature would have wanted to lose control of such a core state function

13

as the operation of its jury system.1 Accordingly, for these reasons, the plain

language of the juror qualification statute does not render any portion of the statute

superfluous or redundant.

C. The Plain Construction of the Juror Qualification Statute Also Accords with the Structure of the New Hampshire Annulment Statute and Eliminated a Possible Ambiguity that Would Otherwise Exist for New Hampshire Prior Convictions.

Not only does the plain language of the juror qualification statute give

independent meaning to each word, it also accords with the New Hampshire

annulment statute's distinction between convictions that are eligible for annulment

and those that are not. Reading the juror qualification statute in light of the

annulment statute is a standard method of statutory construction since the juror

qualification statute makes direct reference to the annulment statute. This cannon

of construction, called in pari materia, provides that "all the laws on the same

subject are to be construed together" because "they are considered as framed upon

one system . . . ." Hayes v. Hanson, 12 N.H. 284 (1841).

Here, it is apparent that the juror qualification law was written to draw on

the distinction made in the annulment statute between eligibility to participate in

1 As the First Circuit suggested in its certification opinion, the "not eligible for an annulment under New Hampshire law" clause also serves as a fallback provision for someone whose New Hampshire conviction was erroneously annulled by a New Hampshire court. Add. at 10. Again, this provision would guarantee that juror qualification is not left solely to the vicissitudes of the annulment system. Rather, the standards set forth in the New Hampshire annulment statute would always serve as a threshold, even where a prospective juror has received an annulment. Thus, in this scenario as well, a person could have an annulment (even if erroneously granted) and still be ineligible to serve as a juror because the conviction "is not eligible for annulment under New Hampshire law."

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the annulment process and ultimately having a conviction annulled. In this regard,

the annulment statute sets forth several criteria, both temporal and substantive,

that must be met before a person with a prior conviction may even participate in the

annulment process, i.e., become eligible for an annulment. N.H. Rev. Stat. Ann. '

651:5, III-VI.

Concerning timing, the annulment statute provides that a person may not

petition for an annulment of a conviction until a certain period has run from when

the defendant has completed serving his sentence for the underlying offense, during

which the defendant has not been convicted of another crime. There is also another

timing requirement: If a petition for an annulment already has been denied, Ano

further petition shall be brought more frequently than every 3 years thereafter.@

N.H. Rev. Stat. Ann. ' 651:5-IV.

In addition to temporal eligibility, the annulment statute establishes limits

on the types of convictions that may be annulled, i.e., substantive eligibility. In this

regard, the annulment statute provides that A[n]o petition shall be brought . . . in

the case of any violent crime, of any crime of obstruction of justice, or of any offense

for which the petitioner was sentenced to an extended term of imprisonment.@ N.H.

Rev. Stat. Ann. ' 651:5-V; State v. Baker, 164 N.H. 296, 299 (2012) (recognizing

that Athe legislature has already determined that certain crimes are eligible for

annulment, and others are not@).

Also, a person may not bring a petition to annul a conviction if any part of his

record includes one of the prohibited crimes identified in ' 651:5-V, or there is

15

another conviction on the person=s record that is temporally ineligible for

annulment. N.H. Rev. Stat. Ann. ' 651:5-VI. The annulment statute further

provides that if any of these bars to participating in the annulment process

(temporal or substantive) exists, an improperly filed petition Ashall be dismissed

without a hearing.@ N.H. Rev. Stat. Ann. ' 651:5-VIII. New Hampshire case law

makes clear that this provision was intended to dispose of petitions filed by persons

who are not eligible to participate in the annulment process. State v. Patterson, 145

N.H. 462, 466-67 (2000); State v. Michael B., 124 N.H. 590, 592-93 (1984).

Even, however, where a person meets the eligibility requirements to

participate in the annulment process, there is no guarantee that the court will

actually annul the conviction. The proper filing of an annulment petition triggers

the procedures set forth in N.H. Rev. Stat. Ann. ' 651:5- IX. Under these

procedures, the court first must order the Department of Corrections to prepare a

report identifying all state or federal convictions, arrests or prosecutions of the

petitioner and any other information that may be relevant to the annulment

decision. Id. The court must also provide a copy of the annulment petition to the

prosecutor of the underlying offense and permit the prosecutor to be heard

Aregarding the interest of justice in regard to the petition.@ Id.

Once these procedures are complete, the court may either Agrant or deny@ the

petition. N.H. Rev. Stat. Ann. ' 651:5-I. It does so by determining whether

granting the annulment will assist in the Apetitioner=s rehabilitation and will be

consistent with the public welfare.@ Id.

16

As this summary of the annulment statute demonstrates, obtaining an

annulment is complicated. It requires first that a person meet certain threshold

eligibility requirements before even being allowed to participate in the annulment

process. Once these threshold requirements are met, the statute establishes an

evidence gathering procedure that must be completed before the court determines

whether to grant the requested annulment under the rehabilitation and public

interest standard.

The annulment statute thus has the effect of creating four categories of

individuals with prior convictions: (1) those who are ineligible to participate in the

annulment process because they cannot satisfy the threshold requirements under

N.H. Rev. Stat. Ann. ' 651:5, III-VI; (2) those who are eligible to participate in the

annulment process but have opted not to do so; (3) those who are eligible to

participate in the annulment process, have done so, but are ultimately denied an

annulment and (4) those who are eligible to participate in the annulment process,

have done so, and are successful in obtaining the annulment.

The juror qualification statute follows this same pattern of recognizing the

distinction between those who can participate in the annulment process and those

who cannot. In this regard, the Awhich is not eligible for annulment under New

Hampshire law@ clause bars from jury service those who may not participate in the

annulment process because they do not satisfy the threshold eligibility

requirements, i.e., the first category described above. The Awhich has not been

annulled,” clause bars from jury service those who are eligible to participate in the

17

annulment process but have either chosen not to do so or have been denied the

annulment on the merits, i.e. the second and third categories described above.

Finally, the juror qualification statute does not cover (and thus allows service by)

the fourth category -- those who have successfully obtained an annulment of an

eligible conviction.

Read with the structure of the annulment statute in mind, it is apparent that

the juror qualification law was drafted to reflect the distinction drawn by the

annulment statute between those who are allowed to participate in the annulment

process, i.e., eligible to petition for an annulment, and those who are not. It does so

by expressly excluding from jury service those who are ineligible to participate in

the process as well as those who are eligible to participate but have, in fact, not

obtained an annulment, either by choice or by adverse ruling.

This understanding of the juror qualification statute further undermines the

district court=s conclusion that the Awhich is not eligible for an annulment under

New Hampshire law@ clause is meaningless. As written, the statute makes clear

that, regardless of whether one is categorically ineligible to participate in the

annulment process or is eligible to participate but has not obtained an annulment,

the result is the same -- disqualification.

Read this way, the Awhich is not eligible for an annulment under New

Hampshire@ clause clarifies a possible ambiguity that could otherwise exist because

of the annulment statute=s structure. If the Awhich is not eligible for an annulment

under New Hampshire law@ clause was omitted, a prospective juror, with an

18

ineligible felony conviction, could plausibly could argue that the Awhich has not been

annulled@ clause does not apply because he is not allowed to participate in the

annulment process at all (categories two and three, supra at 16 ). In this regard,

the felon with the ineligible conviction could argue that limiting disqualification to a

person with a felony "which has not been annulled" connotes an intention to exclude

only those felons with an unrealized possibility of actually obtaining an

annulment.2 Since this particular felon had no possibility of obtaining an

annulment, he could argue that the "which has not been annulled" clause would not

apply to him.

If a court were to adopt such a construction, it would leave outside the law=s

coverage (and thus allow jury service by) those who are prohibited from

participating in the annulment process. This result would be inconsistent with the

legislature's intent of employing the annulment statute's standard of an eligible

conviction as a threshold for jury service. Therefore, it was appropriate for the

legislature to draft the law to avoid this ambiguity. Thus, the Awhich is not eligible

for annulment under New Hampshire law" clause is important for the additional

reason that it clarifies that a person is barred from jury service, even where that

2 An example from a more familiar context may help highlight this possible

argument. To say, for example that a person "has not" filed a brief in a pending case in this Court is different from saying that a person is ineligible to file a brief in the same case. Saying that someone "has not" filed a brief suggests that the person could file a brief but chose not to do so. On the other hand, saying that a person is ineligible to file a brief means that the person is barred from doing so, regardless of his desire. Thus, it would be at least plausible to argue that an annulment which “has not been” annulled is different from a conviction which “cannot be” annulled.

19

person is prohibited by operation of law from participating in the annulment

process.

D. The Defendant's Construction of the Juror Qualification Statute Leads to Absurd Results. Construing the juror qualification statute to prohibit jury service by

individuals with eligible but unannulled convictions is also sound because it avoids

the absurd results that would occur if an eligible conviction was, by itself, sufficient

to restore jury service. See In re Geekie, 157 N.H. 195, 202 (2008) (stating that

court will not interpret statutory language in a manner that will lead to an absurd

result).

The New Hampshire annulment statute makes a conviction ineligible for

annulment if a court has denied a request to have the conviction annulled in the

past three years. N.H. Rev. Stat. Ann. § 651:5, IV. Thus, a person with such a

conviction would be barred from jury service during this time, even under the

defendant’s construction of the juror qualification statute, because he has a

conviction that is ineligible for annulment under New Hampshire law. However,

under the defendant’s interpretation of the juror qualification statute, a second

person with the exact same conviction and who has engaged in the exact same post-

conviction conduct as the first person (except for declining to seek an annulment)

would be restored to jury service simply because he or she decided to avoid the

annulment process entirely. This is so because the second person would have a

conviction that is eligible for annulment when he was called for jury service.

20

This makes no sense. It is illogical to restore the privilege of jury service to

those felons who decided to avoid the annulment process entirely while barring from

service those who applied for an annulment but were denied.

If anything, the result should be the opposite. The person who at least

engaged the annulment system (even if unsuccessfully) has demonstrated more

evidence of rehabilitation (and is therefore more deserving of serving on a jury) than

the otherwise similarly situated person who chose to remain under the radar by

ignoring the annulment process entirely. Yet, under the defendant’s construction,

the person who engaged the system is prohibited from serving while the one who

avoided the system may serve. This plainly absurd result cannot have been the

legislature's intent.3

E. The Legislative History Does Not Support the Conclusion that an Eligible Conviction is Sufficient to Restore Jury Service.

3 The defendant's contention that the jury service is restored merely by the

presence of a conviction that is eligible for annulment also ignores the juror qualification form statute. That statute provides that the clerk of court must provide potential jurors with a questionnaire which requires a prospective juror to specify, inter alia, if he or she is “a convicted felon whose conviction has not been annulled or whose conviction is not eligible for annulment under New Hampshire law.” N.H. Rev. Stat. Ann. § 500-A:6, III(b)(4).

If the defendant’s reading of the juror qualification statute was correct, there

would be no reason to require a prospective juror to declare if his conviction “has not been annulled,” since the only basis for disqualification is a conviction that is “not eligible for annulment” under New Hampshire law. Yet, the legislature mandated that prospective jurors disclose convictions which (1) have not been annulled, or (2) are ineligible for annulment under New Hampshire law. The only reason the legislature would have required jurors to disclose either type of conviction is because either type of conviction (unannulled or ineligible) disqualifies a person from serving as a juror.

21

In the First Circuit, the defendant devoted much of his focus to the legislative

history of the juror qualification statute. This Court should not even consider this

history in its analysis because it is not appropriate to "look to legislative history to

modify the meaning of a statute that is plain on its face." State Employees Ass'n of

N.H. v. State, 127 N.H. 565, 568 (1986). For the reasons already described, the

juror qualification statute clearly provides that a person whose conviction "has not

been annulled" is disqualified from jury service, even if that conviction is eligible for

annulment under New Hampshire law. Therefore, this Court should not even

consider the legislative history in resolving this case.

But even if this Court considered the legislative history, it does not support

the defendant’s argument that the statute means something other than what it

says. The defendant has focused primarily on a Superior Court Reform Study

Committee report on the jury system, which contained a recommendation that

legislation be enacted which "prohibit[s] convicted felons from jury service who are

not eligible to have their convictions annulled." Appx. at 28.

The defendant has read this recommendation to mean that a person is not

required to actually annul his conviction to serve as a juror. But even if the

defendant's reading of the Superior Court report is accurate, there is no indication

that the legislative committee which reported the juror qualification statute

intended to adopt this recommendation.

Rather, the legislative committee report accompanying the juror qualification

statute stated only that the legislative committee had “studied” the Superior Court

22

Report and had worked “to reach a reasonable conclusion” on the issues involved.

Thus, the legislative committee report does not indicate that the bill recommended

to (and eventually adopted by) the legislature was intended to adopt the Superior

Court Reform Study Committee’s recommendation on every aspect of juror

qualifications.

Moreover, the actual conclusion reached by the legislative committee is not

consistent with the Superior Court report. The legislative committee report stated

that the juror qualification bill was intended to “disallow [from jury service] felons

whose convictions have not been annulled or whose convictions are not eligible for

annulment.” Thus, the legislative committee report tracks the language of the

statute: a felon is disqualified from service if his conviction has not been annulled

or is not eligible for annulment.4 Accordingly, the plain language of the committee

report, like the statute itself, supports the conclusion that a felon whose conviction

has not been annulled is disqualified from jury service, regardless of whether the

conviction is eligible for annulment.

VII. CONCLUSION.

For the reasons stated, this Court should conclude that the juror qualification

precludes from jury service a person with an unannulled felony conviction, even if

that conviction is otherwise eligible for annulment under New Hampshire law.

4 The defendant has also quoted from a statement by a sponsoring

representative that testified before the legislative committee about the bill. Def. First Cir. Brief at 25. This statement supports the notion that an ineligible conviction disqualifies a person from jury service. The statement however says nothing about the issue presented here namely, whether an eligible but unannulled conviction also disqualifies someone from jury service.

23

VIII. REQUEST FOR ORAL ARGUMENT.

The United States requests argument before the full Court because this case

raises an issue of first impression and therefore the Court will benefit from being

able to question counsel about the question presented. Assistant United States

Attorney Seth R. Aframe will argue on behalf of the United States.

IX. APPENDED OPINIONS.

The written order of the United States District Court for the District of New

Hampshire and the opinion of the United States Court of Appeals for the First

Circuit certifying the question presented are appended to this brief.

Respectfully submitted,

JOHN P. KACAVAS United States Attorney /s/ Seth R. Aframe Seth R. Aframe Assistant U.S. Attorney Dated: February 4, 2014

CERTIFICATE OF SERVICE

I hereby certify that on this date, February 4, 2014, two true and correct copies of the Appellant’s Brief and Appendix have been provided to counsel for the appellee, Behzad Mirhasham, Assistant Federal Defender, 22 Bridge Street, Concord, NH 03301.

/s/ Seth R. Aframe Seth R. Aframe Assistant United States Attorney

ADDENDUM TO UNITED STATES' BRIEF

TABLE OF CONTENTS

Document Page Order of the U.S. District Court, October 4, 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 001 Opinion, First Circuit Court of Appeals, November 15, 2013 . . . . . . . . . . . . . . . . . . . . . . . 007

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 12-cr-101-01-JD

Ryan Howe

0 R D E R

On August 8, 2012, a federal grand ]ury returned an

indictment charging Ryan Howe with being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g) (1) ("Count One") and

possession of an unregistered firearm in violation of 26 U.S.C.

§§ 5841, 5845(a), 5861(d) and 5871. Howe moves to dismiss Count

One. The government objects to the motion.

Background

Howe was convicted of carrying a firearm without a license

in violation of N.H. Rev. Stat. Ann ("RSA") 159:4, a class B

felony, on May 12, 1995. He received a deferred sentence of a

maximum of two years in prison and was placed on probation. On

August 22, 1997, Howe was convicted of violating his probation,

and was sentenced to one year in prison. He finished serving his

sentence and was released from prison in late 2000. 1 Howe was

1Howe began serving his sentence in August 1997 but was granted bail pending appeal in November 1997. He lost his appeal in April 2000, and resumed serving his sentence in July 2000. Therefore, although Howe was sentenced in 1997 to a prison term of one year, he finished serving his sentence in late 2000.

Case 1:12-cr-00101-JD Document 17 Filed 10/04/12 Page 1 of 6

ADD. 001

also convicted of disorderly conduct on May 13, 2002, and fined

$250.

Howe is charged with being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g) (1) ("Count One") and

possession of an unregistered firearm in violation of 26 U.S.C.

§§ 5841, 5845(a), 5861(d) and 5871. He moves to dismiss Count

One.

Discussion

In support of his motion to dismiss, Howe argues that he is

not a felon for purposes of§ 922(g) (1) because his civil rights,

including his right to serve on a jury, had been restored before

the time of the alleged offense. The government contends that

Howe's right to serve on a jury had not been restored because his

conviction had not been annulled.

A. Felon for Purposes of§ 922(g) (1)

Section 922(g) (1) makes it illegal for anyone "who has been

convicted in any court of, [sic] a crime punishable by

imprisonment for a term exceeding one year" to possess a firearm.

Section 921(a) (20) provides:

Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had his civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

2


ADD. 002

Therefore, § 922(g) (1) provides an exception for those who have

had their civil rights restored after conviction of a felony.

See United States v. Hartsock, 347 F. 3d 1, 10 (1st Cir. 2003);

United States v. Bartelho, 71 F.3d 436, 440 (1st Cir. 1995). In

the First Circuit, "the civil rights that must be restored to

trigger the exception are the rights to vote, to hold public

office, and to serve on a jury." United States v. Estrella, 104

F.3d 3, 5-6 (1st Cir. 1997); see also United States v. Blodgett,

130 F.3d 1, 3 (1st Cir. 1997).

Howe and the government agree that Howe's right to vote and

hold public office were restored before September 15, 2011, when

he was charged with being a felon in possession of a firearm in

violation of§ 922(g) (1). See RSA 607-A:2 (providing that a

person sentenced for a felony may not vote in an election or hold

public office "from the time of his sentencing until his final

discharge"). They disagree, however, as to whether Howe's right

to serve on a jury was restored prior to his alleged violation of

§ 922(g) (1). Therefore, whether Howe was a felon under§

922(g) (1) depends on whether his right to serve on a jury was

restored.

B. Right to Serve on a Jury

RSA 500-A:7-a provides: "[a] juror shall not have been

convicted of any felony which has not been annulled or which is

not eligible for annulment under New Hampshire law." Howe argues

3


ADD. 003

that the proper interpretation of 500-A:7-a prohibits jury

service by a felon whose (1) conviction has not been annulled or

(2) conviction is not yet eligible to be annulled. He contends

that because his conviction became eligible for annulment several

years before September 15, 2011, his right to serve on a jury had

been restored at the time of the charged offense.

The government does not dispute that Howe's felony

conviction was eligible to be annulled under New Hampshire law at

the time of his alleged violation of § 922(g) (1). It contends,

however, that RSA 500-A:7-a prohibits jury service by anyone

convicted of a felony which has yet to be annulled or which could

never be annulled. The government argues that because Howe's

felony conviction was not annulled, his right to serve on a jury

was not restored.

"It is 'a cardinal principle of statutory construction' that

'a statute ought, upon the whole, to be so construed that, if it

can be prevented, no clause, sentence, or word shall be

superfluous, void, or insignificant.'" United States v. Cortes

Claudio, 312 F.3d 17, 21 (1st Cir. 2002) (quoting Duncan v.

Walker, 533 U.S. 167, 174 (2001)). Therefore, "no construction

should be adopted which would render statutory words or phrases

meaningless [or] redundant." United States v. Ven-Fuel. Inc.,

758 F.2d 741, 751-52 (1st Cir. 1985).

In this case, the government's reading of RSA 500-A:7-a

would render the language "which is eligible for annulment"

4


ADD. 004

meaningless. Under the government's reading, the statute

prohibits the following two types of felons from serving on a

jury: (1) those whose felony convictions have not been annulled,

and (2) those whose felony convictions are in the class of

felonies that are never eligible for annulment, such as violent

crimes or crimes of obstruction of justice, see RSA 651:5(V).

Such a reading, however, would render reference to the second

type of felon superfluous, as a person convicted of one of the

class of felonies which can never be annulled would be, by

definition, a person whose felony conviction has not been

annulled. In other words, under the government's reading, if the

phrase "or which is eligible for annulment" were eliminated from

the statute, the statute would still have the same effect. Thus,

the government's interpretation makes part of the statute

superfluous and violates a basic principle of statutory

construction.

Under the plain meaning of the statute, an individual who

has committed a felony may serve on a jury if his conviction is

eligible for annulment. RSA 651:5(III) (d) provides, "any person

convicted of [a class B felony] may petition for annulment of the

record of arrest, conviction, and sentence where the petitioner

has completed all the terms and conditions of the sentence and

has thereafter been convicted of no other crime . . for a

period of . . 5 years." Howe was convicted of a class B felony

and completed the terms and conditions of his sentence for his

5


ADD. 005

felony conviction in 2000. Howe's last criminal conviction, for

disorderly conduct, was on May 13, 2002, more than five years

before his alleged violation of§ 922(g) (1). Therefore, under

§ 651:5(III) (d), Howe's felony conviction was "eligible for

annulment under New Hampshire law" on September 15, 2011, when he

was charged with a violation of§ 922(g) (1). Therefore, his

right to serve on a jury had been restored at that time.

Accordingly, because Howe's civil rights were restored at

the time of his alleged violation of § 922(g) (1), he is not

considered a felon under that statute.

Conclusion

For the foregoing reasons, the defendant's motion to dismiss

Count One (document no. 8) is granted.

SO ORDERED.

October 4, 2012

cc: Jeffrey S. Levin, Esq. Debra M. Walsh, Esq. U.S. Probation U.S. Marshal

6

A. DiClerico, States District


ADD. 006

United States Court of AppealsFor the First Circuit

No. 12-2321

UNITED STATES OF AMERICA,

Appellant,

v.

RYAN HOWE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,Selya, Circuit Judge,

and Hillman,* District Judge.

Seth R. Aframe, Assistant United States Attorney, with whomJohn P. Kacavas, United States Attorney, was on brief, forappellant.

Behzad Mirhashem, with whom Jeffrey S. Levin was on brief, forappellee.

November 15, 2013

* Of the District of Massachusetts, sitting by designation.

Case: 12-2321 Document: 00116611640 Page: 1 Date Filed: 11/15/2013 Entry ID: 5780259

ADD. 007

LYNCH, Chief Judge. The question raised is whether the

district judge correctly dismissed one count of a 2012 federal

indictment against Ryan Howe. That in turn hinges on whether Howe,

convicted in 1995 of a felony, had his civil right to sit on a jury

restored as a matter of New Hampshire state law. The state

statutes involved, though, have not yet been construed and are far

from clear, and their construction will be determinative in this

case. Qualification for jury service is a core concern of the

state and its judiciary. We think the best course is to certify

the statutory interpretation question to the New Hampshire Supreme

Court. See N.H. Sup. Ct. R. 34.

I.

The defendant, Ryan Howe, was indicted in August 2012 for

possession of a firearm by a felon, see 18 U.S.C. § 922(g)(1),

based on his prior predicate conviction of a state felony. He

moved to dismiss this count, arguing that he could not be

classified as a felon under § 922(g)(1) due to the exceptions

listed in 18 U.S.C. § 921(a)(20). Section 921(a)(20) provides:

"[a]ny conviction which has been expunged, or set aside or for

which a person . . . has had his civil rights restored shall not be

considered a conviction for purposes of this chapter . . . ." This

court has held that "the civil rights that must be restored to

trigger the exception [in § 921(a)(20)] are the rights to vote, to

hold public office, and to serve on a jury." United States v.

-2-


ADD. 008

Estrella, 104 F.3d 3, 5-6 (1st Cir. 1997). The government concedes

that Howe's right to vote and right to hold public office were

restored before the date of the charged offense.

Howe argues that he was eligible to serve on a jury under

New Hampshire's juror eligibility statutes as of September 15,

2011, the date of the federal crime. The prosecution argues that

he was not. The district court adopted Howe's reading, as a matter

of law, and dismissed the felon in possession charge.1 See United

States v. Howe, No. 12-cr-101-01-JD, 2012 WL 4757891, at *2-3

(D.N.H. Oct. 4, 2012). The government appealed. We now certify to

the New Hampshire Supreme Court the question of law of whether

Howe's right to serve on a New Hampshire jury was restored as of

September 15, 2011 under sections 500-A:7-a and 651:5 of the New

Hampshire Revised Statutes. The facts are undisputed.

II.

The New Hampshire Supreme Court will accept certified

questions of law from a federal court "if there are involved in any

proceeding before it questions of law of this State which may be

determinative of the cause then pending in the certifying court and

as to which it appears to the certifying court there is no

controlling precedent in the decisions of this court." N.H. Sup.

Ct. R. 34. This case meets those requirements; whether Howe's

1 He is also charged with one count of possession of anunregistered firearm, which is not at issue in this appeal.

-3-


ADD. 009

right to serve on a jury had been restored is determinative of

whether this court must affirm the dismissal of the federal charge.

The New Hampshire Supreme Court has not previously construed the

state's juror qualification and annulment statutes with respect to

the qualification law's annulment-of-prior-felonies provisions, and

the answer to the question presented here is far from clear.

Federalism concerns also motivate us to certify the question best

left to the New Hampshire high court to resolve.

The New Hampshire statute governing Qualifications of

Jurors provides: "A juror shall not have been convicted of any

felony which has not been annulled or which is not eligible for

annulment under New Hampshire law." N.H. Rev. Stat. Ann.

§ 500-A:7-a(V). The process for annulment is set forth at

section 651:5 of the New Hampshire Revised Statutes. It requires

felons seeking an annulment to file a petition with a court and

sets forth standards for the allowance of such a petition. Howe

was eligible for annulment under New Hampshire law beginning five

years from the date of his release from incarceration, see N.H.

Rev. Stat. Ann. § 651:5(III)(d), but he had not petitioned for

annulment before the date of the alleged offense. The question,

then, is whether a felon who is eligible for annulment but who has

not received an annulment may serve on a New Hampshire jury.

The parties offered competing interpretations of the New

Hampshire statutes, and our view is that there are other possible

-4-


ADD. 010

interpretations as well. Howe argues that section 500-A:7-a should

be interpreted to make a felon eligible to serve on a jury if (1)

he had received an annulment, or (2) he were eligible to petition

for an annulment, regardless of whether he had received it. The

prosecution argues that section 500-A:7-a should be interpreted to

be consistent with section 651:52 and to make a felon ineligible as

long as (1) his conviction was not eligible to be annulled, or (2)

his conviction had not been annulled, even if it was eligible for

annulment.

We look to "the method and approach" for legal

interpretation announced by the state's highest court. Cahoon v.

Shelton, 647 F.3d 18, 22 (1st Cir. 2011). Using those methods, we

find no controlling precedent on this question.

III.

A. Statutory Text

A court interpreting New Hampshire law must "first look

to the language of the statute itself, and, if possible, construe

that language according to its plain and ordinary meaning." State

v. Dor, 75 A.3d 1125, 1127 (N.H. 2013). When construing statutory

text, New Hampshire follows the widely accepted rule that "all of

the words of a statute must be given effect and that the

2 The relationship between the two statutes that concernannulment of convictions, one entitled Qualifications of Jurors,section 500-A:7-a, and the other entitled Annulment of CriminalRecords, section 651:5, may be part of the interpretive task.

-5-


ADD. 011

legislature is presumed not to have used superfluous or redundant

words." State v. Guay, 62 A.3d 831, 835 (N.H. 2013) (quoting

Pennelli v. Town of Pelham, 807 A.2d 1256, 1258 (N.H. 2002))

(internal quotation mark omitted).

The parties' competing interpretations each run the risk

of rendering some words redundant. On one hand, as the district

court noted, the government's reading could arguably make the

"which is not eligible" clause redundant. The argument goes that

any felony "which is not eligible" for annulment would fall into

the category of felonies that "ha[ve] not been annulled." So,

under the government's reading, the statute could have been, but

was not, written as "A juror shall not have been convicted of any

felony which has not been annulled under New Hampshire law." The

government argues in response that the clauses are not redundant

because they implicitly distinguish between convictions that are

flatly ineligible for annulment and those that are eligible for

annulment but have not yet been annulled. Without the "which is

not eligible" clause, the government argues, the statute would be

ambiguous as to whether felons with convictions ineligible for

annulment could serve on juries. It is also possible that the

"which is not eligible" clause is only partially redundant under

the government's reading, insofar as it could be intended as a

catch-all to prohibit jury service by individuals with felonies

that were improperly annulled.

-6-


ADD. 012

On the other hand, Howe's interpretation has a similar

flaw, as it arguably makes the "has not been annulled" clause

redundant. Since a felony that was actually annulled would have

been eligible for annulment, Howe's reading would allow the statute

to have been written, although it was not, as "A juror shall not

have been convicted of any felony which is not eligible for

annulment." Howe's reading also reverses the logic of the text,

effectively inverting its two disjunctive disqualifiers (a

prospective juror is disqualified if he has a felony that "has not

been annulled" or "is not eligible for annulment") to become

disjunctive qualifiers (a prospective juror is qualified if he has

a felony that "has been annulled" or "is eligible for annulment").

This reading would be in tension with the New Hampshire Supreme

Court's command not to "add language that the legislature did not

see fit to include." Dor, 75 A.3d at 1127.

We also note the statutes' interpretation may affect New

Hampshire residents who are otherwise eligible jurors but who have

felony convictions, whether annulled or not, from another

jurisdiction.

B. Legislative History

The legislative history -- which may be used when

multiple reasonable interpretations of a statute exist, see State

v. Lathrop, 58 A.3d 670, 673 (N.H. 2012) -- does not appear to

resolve the matter. Howe points to isolated statements in the

-7-


ADD. 013

legislative history, especially one by the study committee that

evaluated an early draft of what became the juror eligibility law

at issue here. But the statements were not made before the full

legislative body and concerned an earlier draft of the statute with

different language than the version ultimately enacted. Cf.

Hooksett Conservation Comm'n v. Hooksett Zoning Bd. of Adjustment,

816 A.2d 948, 952 (N.H. 2003) (declining to rely solely on

legislative history when the legislative history fails to

"provide[] sufficient guidance to determine the legislature's

intent").

C. Administrative Interpretation

In some instances, New Hampshire courts consider the

administrative practice of the bodies implementing relevant laws.

See In re Westwick, 546 A.2d 1051, 1053 (N.H. 1988) ("[W]here a

statute is of doubtful meaning, the long-standing practical and

plausible interpretation applied by the agency responsible for its

implementation, without any interference by the legislature, is

evidence that the administrative construction conforms to the

legislative intent." (quoting State Emps.' Ass'n v. State, 503 A.2d

829, 832 (N.H. 1986)) (internal quotation marks omitted)). We

would be hesitant to give such an administrative interpretation

much weight given the textual difficulties noted. Further, it is

the New Hampshire Supreme Court which is in charge of the judicial

system, and it has not spoken.

-8-


ADD. 014

Howe, after argument,3 provided a copy of the form that

was issued by The Jury Center of the New Hampshire Superior Court

to use to evaluate juror eligibility. In a portion reserved for

court use, that form states next to a check box: "All of the

convictions are eligible for an annulment under New Hampshire law.

The juror is qualified for jury service." Howe reads that as

supporting his position. However, we have not been provided with

any basis for the conclusion that the Center is entitled to any

deference in its administrative interpretation of the laws. Cf.

Hamby v. Adams, 376 A.2d 519, 521 (N.H. 1977) (noting the

importance of "administrative discretion" in evaluating weight of

administrative practice). And, more importantly, an administrative

practice that runs counter to the text of the law does not merit

deference. See In re Westwick, 546 A.2d at 1055.

IV.

In conclusion, certifying the question in this case is

proper not just because the legal issues are not decided by New

Hampshire case law but also because they deal with strong state

interests. Cf. Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real

Estate Info. Servs., 608 F.3d 110, 119 (1st Cir. 2010) (noting the

importance of "strong federalism interests"); Globe Newspaper Co.

3 Counsel for Howe has also represented that he was told by aclerk of the New Hampshire District Court in Merrimack County thatthe courts follow his interpretation. But the evidentiaryshortcomings of that claim, which is not supported by an affidavit,are obvious.

-9-


ADD. 015

v. Beacon Hill Architectural Comm'n, 40 F.3d 18, 24 (1st Cir. 1994)

(noting that issues "of peculiarly state and local concern" are

well-suited for certification). Determining the balance between

the possible New Hampshire legislative policy goals as to who may

be qualified as a juror is a task better suited to the state high

court. Cf. Acadia Ins. Co. v. McNeil, 116 F.3d 599, 605 (1st Cir.

1997) (certifying question to New Hampshire Supreme Court in part

"because the public policy arguments cut both ways").

V.

We certify the following question to the New Hampshire

Supreme Court:

Under sections 500-A:7-a(V) and 651:5 of theNew Hampshire Revised Statutes and theundisputed facts of this case, is a felonwhose conviction is eligible for annulment(that is, not categorically disqualified fromjury service) but who has not applied for orreceived an annulment of that convictionqualified to sit as a juror?

We would also welcome any other comments on relevant points of

state law that the New Hampshire Supreme Court should wish to

share.

The clerk of this court is instructed to transmit to the

New Hampshire Supreme Court, under the official seal of this court,

a copy of the certified question and our opinion in this case,

along with copies of the parties' briefs, appendix, and

supplemental filings under Rule 28(j) of the Federal Rules of

Appellate Procedure. We retain jurisdiction over this appeal.

So ordered.

-10-


ADD. 016

Documents

SUPREME COURT UNITED STATES OF AMERICA,. 2013-0825 . STATE OF NEW HAMPSHRIE . SUPREME COURT . UNITED STATES OF AMERICA, Appellant, v. RYAN HOWE, Defendant-Appellee. Certified Question