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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district

No. 2022-0140

THE STATE OF NEW HAMPSHIRE

v.

NYOK DENG LUWAL

Submitted: September 8, 2022

Opinion Issued: October 20, 2022

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor 

general (Anthony J. Galdieri on the memorandum of law), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the

brief, for the defendant.

DONOVAN, J. The defendant, Nyok Deng Luwal, appeals an order of the 

Superior Court (Delker, J.) ruling that RSA 597:6-e (Supp. 2021) does not 

confer jurisdiction to the superior court to review a circuit court’s order

revoking bail. The State and the defendant agree that the superior court erred 

in ruling that it lacked jurisdiction to hear the appeal under RSA chapter 597. 

They ask us to confirm that the superior court has jurisdiction to review a 

circuit court’s bail revocation order. Having considered the briefs and record 

submitted on appeal, we conclude that RSA chapter 597 authorizes the 

superior court to do so. Accordingly, we reverse.
2

I. Facts

The following facts are agreed upon by the parties or are otherwise 

supported by the record. In October 2021, police arrested the defendant for 

three counts of domestic violence simple assault and one count of criminal 

threatening. Following his arraignment, the circuit court released the 

defendant subject to conditions, including a no-contact order prohibiting the 

defendant from contacting the victim. In December 2021, police arrested the

defendant for violating the no-contact order. Subsequently, the State filed a 

motion seeking to revoke bail in the circuit court. The circuit court found that 

the evidence supported the State’s motion and consequently revoked the 

defendant’s bail under RSA 597:7-a (Supp. 2021) and ordered him detained.

Thereafter, the defendant appealed the decision to the superior court.

The State moved to dismiss the appeal for lack of jurisdiction, while the 

defendant contended that jurisdiction was proper. The court granted the 

State’s motion to dismiss, ruling that RSA 597:6-e does not grant it jurisdiction 

over an appeal from a circuit court’s order to revoke bail. 

In its order, the superior court incorporated by reference the reasoning 

applied in another superior court order which provided that RSA 597:6-e did 

not permit the superior court to review a circuit court’s decision to revoke bail.

The court reasoned that RSA 597:6-e neither references bail revocation nor the 

bail revocation statute, RSA 597:7-a, and that the legislature would have 

included language concerning bail revocation in RSA 597:6-e had it intended 

the statute to apply to such decisions. Furthermore, the court determined that 

the statute’s structure suggests that RSA 597:6-e does not apply to bail 

revocation decisions. In reaching this conclusion, the court reasoned that RSA 

597:2 (Supp. 2021) through RSA 597:6-e address initial bail determinations 

whereas RSA 597:7-a addresses bail revocation decisions.

The trial court found it significant that RSA 597:6-e, II provides no 

guidance to the superior court when considering an appeal from a bail 

revocation decision, in contrast to the specific requirements provided when the 

court considers the modification of a bail order based upon a dangerousness

finding. The court did not think it reasonable that the legislature would 

provide specific guidance to address an appeal from a dangerousness finding 

while remaining silent about the factors to consider in an appeal from a 

decision to revoke bail.

Recognizing that under its interpretation, the appeals process of an 

initial bail decision would differ from that of a bail revocation decision, the 

court posited three justifications. First, the factors that a court considers in a 

bail revocation hearing differ from those that a court considers in an initial bail 

decision. Second, bail revocation hearings, unlike initial bail hearings, are 

often evidentiary. Third, bail revocation proceedings are analogous to contempt 
3

of court proceedings, and a defendant lacks any avenue to appeal a contempt 

finding to the superior court. Lastly, the court reasoned that its interpretation 

would not deprive a defendant of appellate review of a circuit court’s decision to 

revoke bail because the defendant could appeal that decision to this court.

This appeal followed.

II. Analysis

A. Mootness

Since the defendant filed his appeal, the State filed a nolle prosequi

terminating the circuit court prosecution of the charges upon which the 

defendant was held. Consequently, the defendant is no longer incarcerated. 

Nevertheless, both parties argue that his appeal is not moot because it

presents a legal issue that is of pressing public interest and capable of 

repetition yet evading review. We agree.

Mootness is not subject to rigid rules, but is a matter of convenience and 

discretion. Royer v. State Dep’t of Empl. Security, 118 N.H. 673, 675 (1978). A 

case may not be moot if “it presents legal issues that are of pressing public 

interest and are capable of repetition yet evading review.” Olson v. Town of 

Grafton, 168 N.H. 563, 566 (2016) (quotation omitted). Here, not only does the 

issue involve a person’s statutory right to an appeal, see RSA 597:2, X, but 

litigants also need to know where to appeal bail revocation decisions.

Additionally, misdemeanor cases move quickly through the circuit courts and, 

as in this case, bail issues often become moot before we have an opportunity to 

address them. See, e.g., State v. Hill, 172 N.H. 711, 712 (2019) (interpreting 

RSA 597:2 after determining that the issue was not moot, even though the 

defendant resolved the charges against her and was no longer subject to bail).

Therefore, we conclude that this case is not moot and accordingly consider the 

jurisdictional question.

B. Statutory Interpretation

The State and the defendant agree that the superior court misconstrued 

RSA chapter 597 when it interpreted the statute as not providing the superior 

court with appellate jurisdiction over circuit court bail revocation decisions. 

The interpretation of a statute presents a question of law that we review de

novo. See State v. Pinault, 168 N.H. 28, 31 (2015). In matters of statutory 

interpretation, the intent of the legislature is expressed in the words of the 

statute considered as a whole. See id. We first look to the language of the 

statute itself, and, if possible, construe that language according to its plain and 

ordinary meaning. Id. Furthermore, we interpret legislative intent from the 

statute as written and will not consider what the legislature might have said or 

add language the legislature did not see fit to include. Id. Finally, we interpret 

statutes in the context of the overall statutory scheme and not in isolation. Id.
4

At issue are three provisions within RSA chapter 597, “Bail and 

Recognizances”: RSA 597:2, X, RSA 597:6-e, II, and RSA 597:7-a, III. RSA

597:7-a, III governs bail revocation proceedings. It provides that “[t]he state 

may initiate a proceeding for revocation of an order of release by filing a motion 

with the court which ordered the release and the order of which is alleged to 

have been violated.” RSA 597:7-a, III. The statute requires the court to “enter 

an order of revocation and detention if, after a hearing, the court” finds that 

either probable cause exists to find the person committed a crime while on 

release, or that clear and convincing evidence exists that the person violated 

the conditions of their release, and that either there “is no condition or 

combination of conditions of release” that will ensure the person will neither 

pose a danger nor a flight risk, or the person is unlikely to adhere to any 

conditions of release. Id.

RSA 597:2, X provides a statutory right of review. It states:

X. A person detained by a circuit court has the right to:

(a) In the first instance, a hearing in circuit court within 36

hours after the filing of the motion, excluding weekends and

holidays on a motion to reconsider the original detention order;

and

(b) A decision upon a de novo appeal, pursuant to RSA 597:6-e,

II, to the superior court within 36 hours of the filing of the appeal,

excluding weekends and holidays.

RSA 597:2, X.

RSA 597:6-e, II sets forth the superior court’s process to review circuit

court bail decisions. This provision states that “[s]ubject to RSA 597:2, X, the

person or the state may file with the superior court a motion for revocation of

the order or amendment of the conditions of release set by a municipal or

district court, by a justice, or by a bail commissioner.” RSA 597:6-e, II; see

RSA 490-F:18 (Supp. 2018) (explaining that statutes that reference the

jurisdiction of the district court are deemed to refer to the circuit court).

We conclude that a plain reading of these provisions of RSA chapter 597

confer to the superior court jurisdiction to review circuit court bail revocation

decisions. RSA 597:7-a, III, which governs bail revocation, authorizes the same

court that initially granted release on bail to also consider whether to revoke

bail. After making certain findings supporting its decision to revoke bail, the

court must “enter an order of revocation and detention.” RSA 597:7-a, III. RSA

597:2, X grants a statutory right of review to “[a] person detained by a circuit

court” by guaranteeing them the right to “[a] decision upon a de novo appeal,

pursuant to RSA 597:6-e, II, to the superior court . . . .” RSA 597:2, X

(emphasis added). Here, the circuit court revoked the defendant’s bail and
5

issued an order of detention under RSA 597:7-a. Therefore, the defendant in

this case was, under the plain meaning of RSA 597:2, X, “[a] person detained

by a circuit court.” Accordingly, pursuant to RSA 597:2, X(b), the defendant

maintains the right of appeal to the superior court under the standard set forth

in RSA 597:6-e, II.

Moreover, RSA 597:6-e, II incorporates RSA 597:2, X by reference by

providing that “[s]ubject to RSA 597:2, X, the person or state may file with the

superior court . . . .” It is unnecessary for RSA 597:6-e, II to specifically

reference either bail revocation or RSA 597:7-a because such bail revocation

decisions enter the RSA 597:6-e, II review process by way of RSA 597:2, X. 

Therefore, permitting superior court review of circuit court bail revocation

decisions does not add language to the statute because the statute’s plain

language already permits such review. See RSA 597:2, X; RSA 597:6-e, II; RSA

597:7-a, III.

By contrast, construing the statute as prohibiting superior court review

of circuit court bail revocation decisions adds language to either RSA 597:2, X

or RSA 597:6-e, II. See Pinault, 168 N.H. at 31 (“[W]e interpret legislative

intent from the statute as written and will not consider what the legislature

might have said or add language it did not see fit to include.”). Nothing in RSA

597:2, X limits the right of appeal to initial bail decisions. Subsection X grants

the right of appellate review in the superior court to any “person detained by a

circuit court,” regardless of whether the order of detention originates from an

initial bail hearing or a bail revocation hearing. RSA 597:2, X. Accordingly,

restricting RSA 597:2, X to initial bail determinations would add language to

the statute in order to limit this broad language. See, e.g., State v.

Zhukovskyy, 174 N.H. 430, 435 (2021) (declining to adopt the defendant’s

interpretation of RSA 597:2, IV to mandate evidentiary bail hearings because

doing so would require adding language to the statute). 

Similarly, nothing in RSA 597:6-e, II limits the review process to initial

bail determinations or excludes decisions to revoke bail. RSA 597:6-e, II

describes who may appeal to the superior court, the types of relief that a party

may seek in superior court, and the documents that the moving party must

submit to the superior court — all of which apply to bail revocation

proceedings.

1 Given this detailed language, the legislature would have

explicitly excluded bail revocation decisions from superior court review if it so

intended.

 

1 “[T]he person or the state may file with the superior court a motion for revocation of the order or 

amendment of the conditions of release set by a municipal or district court, by a justice, or by a 

bail commissioner.” RSA 597:6-e, II. The moving party must “provide[] to the superior court 

certified copies of the complaint, affidavit, warrant, bail slip, and any other court orders relative to 

each charge for which a release or detention order was issued by a justice, or a bail 

commissioner.” Id.
6

Finally, we can discern no reason why the legislature would treat the

review of a bail revocation decision differently from the review of initial

preventive detention decisions when the loss of liberty is the same in both

instances. Adopting the superior court’s interpretation would create an

unnecessary disparity between the appeals process for initial bail decisions and

decisions revoking bail. See State v. Breest, 167 N.H. 210, 213-14 (2014)

(refusing to interpret a statute in a manner that would result in two

defendants, each with equally favorable DNA results, receiving different

treatment under the statute based upon how they obtained their results). 

Under the superior court’s interpretation, individuals subject to preventive

detention as a result of a circuit court’s initial bail decision are entitled to seek

de novo review of the bail decision in the superior court. See RSA 597:2, X. In

contrast, individuals subject to preventive detention due to a circuit court’s

decision to revoke bail and issue an order of detention could not, despite the

fact that the loss of liberty is the same in both instances. We cannot conclude

that the legislature intended such a disparate result.

III. Conclusion

For the foregoing reasons, we reverse and hold that RSA chapter 597 

grants the superior court the authority to review a circuit court’s bail 

revocation decision.

 

Reversed.

MACDONALD, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ., 

concurred.