State v. Hodgkiss

565 A.2d 1059, 132 N.H. 376, 1989 N.H. LEXIS 114
CourtSupreme Court of New Hampshire
DecidedNovember 16, 1989
DocketNo. 88-256
StatusPublished
Cited by20 cases

This text of 565 A.2d 1059 (State v. Hodgkiss) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hodgkiss, 565 A.2d 1059, 132 N.H. 376, 1989 N.H. LEXIS 114 (N.H. 1989).

Opinion

Souter, J.

The Manchester District Court (Capistran, J.) found the defendant guilty of violating city ordinances prohibiting the encumbrance of sidewalks and posting of signs on city property, based in each instance on conduct urging registration to vote in the 1988 presidential preference primary and espousing the candidacy of Lyndon LaRouche. In this consolidated appeal under RSA 599: 1-c, II, we hold the encumbrance ordinance inapplicable to noncommercial activity and reverse the conviction for its violation; we affirm the conviction for unlawful posting.

The evidence indicated that on February 2, 1988, the defendant, Michael Hodgkiss, stood with an associate on the Elm Street sidewalk next to the Manchester City Hall, distributing pamphlets for Lyndon LaRouche and urging pedestrians to enter the building to register as voters in the coming presidential preference primary. The defendant set up a card table several feet from the curb to hold extra literature and display some signs. To keep rain off the material, he covered the table with a large umbrella, which he held in place with a rope strung between a lamppost and a tree, each maintained by the city. From the rope he also suspended a six-foot cardboard sign variously described as supporting LaRouche or urging voter registration.

In the middle of the afternoon, a police officer told the defendant that city ordinances required a permit for placement of the card table and the large sign suspended from the rope. He explained that the defendant was free to continue distributing literature, but directed him to remove the table, umbrella and sign. The defendant called the ordinances unconstitutional and refused. Soon thereafter another officer appeared with copies of the two ordinances in question, Manchester Ordinances Sections 11-40 and 22-35, and attempted to read them to the defendant, who is said to have responded by shouting that the police were “commies” behaving like the K.G.B. The police then arrested him for disorderly conduct and later charged him with violating the two ordinances. Although the police removed the table, umbrella and sign, LaRouche [378]*378supporters returned to the site and handed out literature later in the afternoon.

In the district court, four charges were consolidated for trial. The defendant was acquitted on a motor vehicle complaint unrelated to the matters now under appeal. Although he was convicted of disorderly conduct, this charge was dismissed without objection from the State after appeal to the superior court for trial de novo. See RSA 599:1 (Supp. 1988). The remaining convictions, for violating the two ordinances, have come to us on direct appeal under RSA 599:1-c, II.

The charge of “unlawfully encumbering] the sidewalk in front of City Hall on Elm Street with a table and large patio umbrella” was brought under Manchester Ordinances Section 22-35:

“Section 22-35. Encumbrances prohibited generally.
(a) No person shall encumber the street or sidewalk before his place of business, or elsewhere in the city, with any boxes, shelves, stands, merchandise or other things, excepting that the board of mayor and aldermen may grant a license to any person or persons to use and occupy a portion of the street or sidewalk for the purpose of conducting thereon street fairs or other community events. Each such license shall contain the following provisions:
(2) Each license shall allow the encumbering of no more than one-half of the sidewalk area immediately adjacent to the building so that a minimum of one-half of the sidewalk is maintained free and clear for pedestrian traffic . . . .”

The defendant challenges both the applicability and constitutionality of this ordinance, arguing that it should be read to prohibit only encumbrances that would actually create impediments to the movement of people or vehicles, of which there was said to be no evidence, and contending that on any other reading the ordinance would unconstitutionally restrict political speech.

We reach only the issue of applicability, although without accepting the defendant’s analysis on this point. Assuming arguendo that a conviction under the ordinance would require proof that pedestrians were actually impeded, we could not say that the record precluded such a finding, since there was evidence that the card table extended six-and-a-half feet from the curb into the walkway on a busy sidewalk.

[379]*379The fact that we do not accept the defendant’s argument against the ordinance’s applicability does not, however, bar us from considering other grounds on which it may be inapplicable, for we follow a strong policy against reaching a constitutional issue in a case that can be decided on a nonconstitutional ground. Bedford Residents Group v. Town of Bedford, 130 N.H. 632, 638, 547 A.2d 225, 229 (1988); White v. Town of Wolfeboro, 131 N.H. 1, 3, 551 A.2d 514, 515 (1988) (citing New Hampshire Ins. Co. v. Duvall, 115 N.H. 215, 218, 337 A.2d 533, 535 (1975)); Crowell v. Benson, 285 U.S. 22, 62 (1932); see also Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). Thus, even when a dispositive statutory issue is not raised by the parties, the court may consider it as the way to avoid a needless constitutional decision. Cf. School Dist. #42 v. Murray, 128 N.H. 417, 419, 514 A.2d 1269, 1271 (1986) (court reached issue not raised below lest it usurp primary jurisdiction of a legislatively-empowered appeals board); see also Blonder-Tongue v. University Foundation, 402 U.S. 313, 320 n.6 (1971); Ashwander v. Tennessee Valley Authority supra.

As we read the ordinance, the activities it is apparently meant to prohibit and regulate do not include the sort of political promotion in which the defendant was engaged. While the ordinance’s topic heading speaks of prohibition “generally,” the first clause of the text speaks of encumbering streets or sidewalks before a person’s “place of business” or elsewhere, thereby carrying the suggestion that the ordinance is addressed to merchants, an implication confirmed by the description of the prohibited encumbrances as “boxes, shelves, stands, merchandise or other things.” Although, on its face, “other things” is broad language, there is a common rule that a general statutory term is to be understood to cover further instances comparable to any specific examples listed with it, see State v. Small, 99 N.H. 349, 350, 111 A.2d 201, 202 (1955), and in the absence of a contrary indication we should accordingly infer that the catch-all phrase was only intended to prohibit placement of the subjects and equipment of commerce in the travelled ways.

This reading is confirmed by the provision that even licensed encumbrances may not cover more than one-half of a sidewalk “immediately adjacent to the building,” with its probable reference to commercial property where building and sidewalk are characteristically contiguous.

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Cite This Page — Counsel Stack

Bluebook (online)
565 A.2d 1059, 132 N.H. 376, 1989 N.H. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hodgkiss-nh-1989.