Fischer v. Superintendent, Strafford Cnty. House of Corr., 2010–737.

• Decision Date: 20 April 2012
• Docket Number: No. 2010–737.,2010–737.
• Citation: 163 N.H. 515,44 A.3d 493
• Parties: David FISCHER v. SUPERINTENDENT, STRAFFORD COUNTY HOUSE OF CORRECTIONS.
• Court: New Hampshire Supreme Court

163 N.H. 515

44 A.3d 493

David FISCHER

v.SUPERINTENDENT, STRAFFORD COUNTY HOUSE OF CORRECTIONS.

No. 2010–737.

Supreme Court of New Hampshire.

Argued: Feb. 9, 2012.

Opinion Issued: April 20, 2012.

David Fischer, by brief, pro se, and Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the petitioner.

Soldati Law Offices, P.A., of Portsmouth (Lincoln T. Soldati on the brief and orally), for the respondent.

HICKS, J.

The petitioner, David Fischer, appeals orders of the Superior Court ( Brown and Wageling, JJ.) on his motions for pretrial bail, claiming that the court delegated authority to Strafford County Community Corrections (SCCC), which is managed by the respondent, Superintendent, Strafford County House of Corrections, and part of the executive branch, in violation of the separation of powers doctrine. We affirm.

The following facts are either undisputed or supported in the record. On February 19, 2010, the petitioner was arrested on charges of second degree assault, a class B felony, seeRSA 631:2 (Supp.2011), and six related misdemeanors. Bail was set by the Dover District Court ( Cappiello, J.) at $75,000 cash, subject to certain conditions, including, if the petitioner posted bail, supervision by SCCC with a sobrietor, GPS monitoring, and a mental health referral. Bail was continued by the Court ( Weaver, J.) on March 5, 2010.

The petitioner filed a motion in superior court for an amendment of bail, arguing that $75,000 cash bail was excessive and that he was entitled to personal recognizance (PR) bail, pursuant to RSA 597:2 (Supp.2011). He proposed that he would reside with his mother in Rochester.

Following a hearing on May 3, the Court ( Brown, J.) ordered that bail would “remain as is” at $75,000 cash with the stated conditions, and scheduled a further hearing. Judge Brown issued an amended order on May 6, lowering the cash bail to $50,000 and setting conditions, if bail was posted, including that the petitioner: (1) “live at: his mother's house on house arrest to leave for mental health counseling only”; (2) refrain from using drugs and alcohol and “[s]ubmit to random drug [and] alcohol tests”; and (3) be “supervised [and] electronically monitored by SCCC [with] GPS, Sobrietor [and] Mental Health Refera[l].”

On June 1, Judge Brown again ruled that bail would remain as is and ordered a further hearing at a time the defendant's therapist would be available to testify. At that subsequent hearing, on June 15, Judge Brown ruled as follows from the bench:

What we're going to do, Mr. Fischer, is that it's going to stay at 50,000 cash to convert to personal recognizance upon verification of residence, which I don't think is going to be a problem because it's your mother's residence, and confirmation of an existing and ongoing mental health and medical appointments.

So you'll be released on a GPS[,] Sobrietor, administrative home confinement, basically house arrest. You'll be able to leave the residence for mental health, medical, consult with counsel, and meeting with [SCCC]. But other than those—unless counsel sees any other exceptions, I'll listen to that, but those are the only exceptions, and no contact with the victim.

The written order of same date stated that bail was set at $50,000 cash “[t]o convert to PR if found accep[table] by SCCC—Whether Bail is Posted or Converted all conditions apply.” (Capitalization omitted.) Those conditions included supervision by SCCC “upon verification of address,” refraining from drugs and alcohol, and submission to random drug and alcohol testing.

For reasons the parties disputed, but which are unnecessary to recount here, placement of the petitioner with his mother became infeasible. The petitioner moved to amend his bail conditions, proposing to live at a certain residence in Massachusetts. The State objected and the motion was denied without a hearing on July 7, 2010. On August 25, the petitioner moved for a bail hearing, this time proposing to reside in Rochester. The State again objected and the matter was heard by Judge Wageling on September 1.

At the hearing, the petitioner alleged that SCCC was being unreasonable in repeatedly finding his proposed residences inappropriate. His counsel argued that SCCC “doesn't have the authority to decide bail conditions, and this Court can order that he be monitored by [SCCC] with the conditions set by Judge Brown.” Judge Wageling denied the motion, stating, in part, that she would intervene if SCCC were shown to be violating its own policies. She stated further, “Otherwise, I'm going to leave it to [SCCC's] discretion to apply their rules. It's the separation of powers doctrine, as far as I'm concerned.”

At least one additional pre-trial motion by the petitioner to amend bail was denied, and, although the record does not indicate the entire disposition at trial, it appears that the petitioner was convicted on at least one felony charge. A post-verdict bail hearing was held before Judge Brown on December 9, 2010. The court declined to modify bail, stating from the bench:

I am not going to exercise my discretion and order [SCCC] to do anything. I have a bail order that's been in place since June 15th, 2010, and that remains in place as is.

I'm just not going to order [SCCC] to do something it is not inclined to do. I have the power, and I have the discretion to do that, but I'm not going to in this case. The bail remains as is.

This appeal followed. We accepted a single question for review: “Whether the court's delegation to SCCC of the ultimate authority to determine whether the petitioner is released on personal recognizance bail is an unconstitutional delegation of judicial authority.”

As a preliminary matter, the petitioner asks us to rule that the issue he presents is not moot for two reasons. First, because Judge Brown considered the pre-trial bail order still in effect post-conviction, resolution of the issue “could affect whether [the petitioner] obtains release on bail pending appeal.” Second, he contends that the question of SCCC's power to determine conditions of release on bail is likely to recur, but evade appellate review given that SCCC may not reach a decision about pre-trial detention in any particular case “until shortly before trial, at which point the value to the defendant of pretrial release has been almost entirely lost.”

“[T]he question of mootness is not subject to rigid rules, but is regarded as one of convenience and discretion.” Batchelder v. Town of Plymouth Zoning Bd. of Adjustment, 160 N.H. 253, 255–56, 999 A.2d 323 (2010) (quotation omitted). Because this case presents an issue “capable of repetition, yet evading review,” State v. Gagne, 129 N.H. 93, 98, 523 A.2d 76 (1986) (quotation omitted), we conclude that it is not moot and will decide it on the merits.

The petitioner argues that the trial court's delegation to SCCC of the authority to determine whether to release him on personal recognizance bail violated the principle of separation of powers. The separation of powers doctrine is embodied in Part I, Article 37 of our State Constitution, which provides:

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

“Separation of powers is an integral part of our governmental system of checks and balances: each branch of government acts as a check on the other, protecting the sovereignty and freedom of those governed by preventing the tyranny of any one branch of the government being supreme.” Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. 562, 568, 688 A.2d 1006 (1997). Thus, under the Separation of Powers Clause, “each branch is prohibited ... from encroaching upon the powers and functions of another branch.” Duquette v. Warden, N.H. State Prison, 154 N.H. 737, 746–47, 919 A.2d 767 (2007). Nevertheless, Part I, Article 37 does “not provide for impenetrable barriers between the branches ... and the doctrine is violated only when one branch usurps an essential power of another.” Id. at 747, 919 A.2d 767 (citation omitted). In addition, “we have always recognized that the doctrine does not require an absolute division of powers, but a cooperative accommodation among the three branches of government.” Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. at 569, 688 A.2d 1006. “In the connection between the departments some overlapping is permissible, and there is a region of authority, alternative and concurrent, the boundaries of which are fixed by no final rule.” Opinion of the Justices, 87 N.H. 492, 493, 179 A. 344, 357 (1935).

The petitioner's argument rests upon the premise that “[t]he power to determine the conditions on a defendant's right to pre-trial release...