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- courts/supreme

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough

- n orthern j udicial d istrict

No

. 2022

- 0140

THE STATE OF NEW HAMPSHIRE

v.

NYOK DENG LUWAL

Submitted : September 8, 2022

Opinion Issued: October 2 0 , 2022

Jo hn M

. Formella , attorney general , and Anthony J

. Galdieri , solicitor

general ( Anthony J

. Galdieri on the memorandum of law ), for the State.

Christopher M

. Johnson

, c hief a ppellate 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. T he 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 bai l revocation order

. Having considered the briefs and record

submitted on appeal, we conclude that RSA chapter 597 authorize s 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 S tate filed a

m otion se eking 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 S tate moved to dismiss the appeal for lack of jurisdiction, while the

defendant contended that jurisdiction was proper. The court granted the

S tate’s motio n to dismiss, ruling that RSA 5 97:6

- e does not grant it j ur isdiction

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

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

applied in another superior court order which provided t hat 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 reference s bail revocation n or 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

revocati on decisions

. In reaching this conclusion, the court reasoned that RS A

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 consider ing 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

pr ovide 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 de cision 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 contempt3

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

finding to the superior court

. Lastly, the court re asoned that its interpretation

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

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

. T his appeal followed

.

II

. Analysis

A

. Mootness

Since the defendant filed his appeal, the S tate filed a nolle prosequi

terminating the circuit court pro secution of the charges upon which the

defendant was held . C onsequently, the defendant is no longer incarcerated.

Nevertheless, both parties a rgue th at 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

. Sec urity , 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) (quotat ion omitted)

. H ere, 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 cou rts 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 t hat the s uperior c ourt misconstrued

RSA chapter 597 when it interpreted the statute as not providing the s uperior

c ourt with appellate jurisdiction over circuit court bail revocation decisions.

The interpretation of a stat ute 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

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

ordinary meaning

. Id

. Further more , 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 iss ue are three provisions within RSA c hapter 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 ord er 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” f inds that

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

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

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

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

pose a danger no r 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 cour t 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 ho urs 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 rev iew 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

. A fter making certain findings suppo rting 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 and5

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 se t forth

in RSA 597:6

- e, II

.

Moreover, R SA 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 un necessary 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 revocati on

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

langua ge 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. S ubs ection 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 a n

initial bail hearing or a bail revocation hearing

. RSA 597:2, X. A ccordingly

, restricting RSA 597:2, X to initial bail determinations would add l anguage 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 i n 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 exclude d bail revocation decis ions 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

Fin ally, we can discern no reason why the legislature would treat the

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

preven tive 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, receiv ing different

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

. U nder the superior court’s interpretation

, i ndividuals subject to preven tive

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

deci s ion 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 legis lature 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

.

M AC DONALD , C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,

concurred.