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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

U.S. Court of Appeals for the First Circuit

No. 2013

- 825

UNITED STATES OF AME RICA

v.

RYAN HOWE

Argued: June 26, 2014 Opinion Issued: November 13 , 2014

John P. Kacavas

, United States Attorney ( Seth R. Aframe , Assistant

United States Attorney, on the brief and orally), for the United States of

America

.

Behzad Mirhashem

, assistant federal defender, of Boston,

Massachusetts, and Jeffrey S. Levin , assistant federal defender, of Concord

( Mr. Mirhashem and Mr. Levin on the brief , and Mr. Mirhashem orally), for the

defendant.

Joseph A. Foster , attorney general ( K. Allen Brooks , senior assistant

attorney general, on the brief), for the State of New Hampshire, as amicus

curiae

.2

David J. Widi, Jr., self

- represented, by brief , as amicus curiae

.

HICKS , J. Pursuant to Supreme Court Rule 34, the United States Court of Appeals for the First Circuit ( Lynch , C.J.) certified to us the following question:

Under sections 500

- A:7

- a(V) and 651:5 of the New Hampshire Revised Statutes and the undisputed fac ts of this case, is a felon whose conviction is eligible for annulment (that is, not categorically disqualified from jury service) but who has not applied for or received an annulment of that conviction qualified to sit as a juror?

We respond in the affir mative

.

The First Circuit’s ord er provides the following facts. The defendant, Ryan Howe, was indicted under federal law in August 2012 for possession of a firearm by a felon, see 18 U.S.C. § 922(g)(1) (2012) , bas ed upon a prior state felony conviction

. He moved to dismiss th at count on the ground that he was

not a felon under section 922(g)(1) pursuant to an exception provide d in 18 U.S.C. § 921(a)(20)

. See 18 U.S.C. § 921(a)(20) (2012)

. Section 921(a)(20) provides , in part, that “ [a] ny conviction wh ich has been expunged, or set aside or for which a person

. . . has had civil rights restored shall not be considered a conviction for purposes of this chapter

. ” Id

. The First Circuit has held that “the civil rights that must be restored to trigger the e xception [in section 921(a)(20) ] 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). The United States concedes that the defendant’s right s to vote and to hold public office were restored by operation of state law before the date of the fe deral of fense

, September 15, 2011

.

The parties disagree as to whether the defendant was eligible , as of September 15, 2011, to serve on a jury under our juror qualification statute

. S ee RSA 500

- A:7

- a, V (2010 ) (amended 2014)

. RSA 500

- A:7

- a, V 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.” The United
States District Court for th e District of New Hampshire ( DiClerico , J.) adopted the defendant’s reading of RSA 500

- A:7

- a, V and di smissed the felon in possession charge. The United States appealed to the First Circuit, which
certified to us the above question.

Responding to the certified question requires us to engage in statutory interpretation

. “ We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. ” Town of Newbury v. N.H. Fish & Game Dep’t

, 165 N.H. 142, 144 (2013) (quotation omitted).

“ When examining the language of the statute, we ascribe the plain and3

ordinary meaning to the words used. ” Id . (quotation omitted). “ We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit
to include. ” Id . (quotation omitted). “ We also interpret a statute in the context of the overall statutory scheme and not in isolation. ” Id . (quotation om itted). “Our goal is to apply statutes in light of the legislature’s intent in enacting them, and in light of the policy sought to be advanced by the entire statutory
scheme.” State v. Guay , 164 N.H. 696, 700 (2013) (quotation omitted).

T he United Sta tes , as well as both amic i curiae

, correctly note that RSA
500

- A:7

- a, V should be read in conjunction with the statute governing
annulment s , RSA 651:5 (Supp. 2011) (amended 2012, 2013

, 2014)

, as they are related in subject

- matter. See Bradley v. City of Manchester , 141 N.H. 329,

3 3 4

- 35 (1996) (noting that “all statutes upon the same subject

- matter are to be considered in interpreting any one of them” (quotation omitted)). The United
States and the amic i curiae , however, offer differing interpretations of how RSA 651:5’s provisions tie into the structure of RSA 500

- A:7

- a, V

.

RSA 651:5 sets forth both procedural prerequisites and categorical bars to obtaining annulments. Thus, for instance, RSA 651:5, III pr ovides, in part, that “[e]xcept as provided in . . . paragraphs V and VI,” a person may petition
for annulment when he or she: (1) “has completed all the terms and conditions of the sentence”; and (2) “has thereafter been convicted of no other crime,”

exc ept for certain motor vehicle offenses, for the period of time thereafter specified for certain categories or levels of offense. RSA 651:5, III ( Supp. 2010 ). Paragraph IV provides that “[i]f a petition for annulment is denied, no further petition shall b e brought more frequently than every 3 years thereafter.” RSA 651:5, IV ( 200 7 ). Paragraphs V and VI set forth a categorical bar to annulment
for certain offenses. RSA 651:5, V (2007) (amended 2014), VI (2007). At the
time of the defendant’s alleged vio lation of 18 U.S.C. § 922(g)(1) , p aragraph V

state d : “No petition shall be brought and no annulment granted 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 t erm of imprisonment under RSA 651:6.” RSA 651:5, V. The offenses constituting “violent crime[s]” for purpose of the annulment statue and the definition of the term “crime of obstruction of justice” are set forth in paragraphs XIII and XIV, respectively. RSA 651:5, XIII, XIV ( 200 7 ). Paragraph VI applies “[i]f a person has been convicted of more than one offense” and provides, among other things, that “no petition for annulment shall be brought and no annulment granted . . . [i]f annulment of any part of the record is barred under paragraph V.” RSA 651:5,

V I

.

The United S tates contends that “the ‘which is not eligible for an nulment under New Hampshire law’ clause [ in RSA 507

- A:7

- a, V ] bars from jury service those who may not participate in the annulment process because they do not satisfy the threshold [temporal] eligibility requirements.” The State, on the4

other hand, reads the “not eligible” clause as referring to the categorical bar of RSA 651:5, V and VI, and considers the procedural requirements of RSA 651:5, I through IV to be subsumed within the “actually . . . annulled” clause. Widi contends that the eligibility contemplated by RSA 500

- A:7

- a, V does not include the “the tempora l requirements for petitioning for annulment.”

We need not determine which, if any, of th e se proposed constructions are

correct in order t o answer the certified question. Whatever RSA 500

- A:7

- a, V means by “not eligible for annulment, ” the United Stat es con cedes that “there is no dispute that the defendant’s conviction is eligible for annulment under New Hampshire law.” Th us, th e only question before us is: G iven that the defendant, despite that undisputed eligibility, has not obtained annulment of
h is conviction, is he nevertheless qualified to serve as a jur or ?

The United States argues that “[t]he 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 United States focuses upon the statute’s use of the term “or,” which, it contends “indicates the disjunctive.” It argues:

[T]he statute establishes a result

– disqualification from jury service ( “ no j uror shall ” )

– and creates two conditions, either of
which triggers the disqualification result. These conditions are: (1) the presence of a felony which has not been annulled “ or ” (2) the presence of a felony which is not eligible for annulment under New Hampshire law.

(Emphasis added.) Such a reading is consistent with our interpretation of other statutes written in the disjunctive. See

, e.g. , Unit Owners Assoc. of
Summit Vista v. Miller , 141 N.H. 39, 45 (1996) (concluding that “the use of the disjunctive ‘or’ [in the damages provision of the Consumer Protection Act, see RSA 358

- A:10 (2009)] manifests a clear intent to award multiple damages for either knowing or willful acts ” ); Welts’ Case , 136 N.H. 588, 591

- 92 (1993) (noting that attorney professional conduct rule establishing misconduct where attorney’s “conduct involve[ed] dishonesty, fraud, deceit or misrepresentation,” is disjunctive and concluding, therefore, that “[a] fin ding of misrepresentation alone constitutes misconduct” (quotation omitted)).

The defendant , on the other hand, argues for a construction of RSA 500

- A:7

- a, V under which, “if a conviction has not been annulled, but is eligible for annulment under New Hamp shire law, then that conviction does not disqualify a person from jury service.” The defendant contends that “ t he statute excludes from jury service only persons with felony criminal convictions of a specified status. If a felony conviction has been annu lled, the person is not disqualified. If a felony conviction is eligible for annulment, the person is not disqualified.”5

In essence, the defendant’s construction states the provision in positive form, dispensing with the double negative by deleting the successive “nots

. ” He thereby concludes that a juror is qualified to serve if he “shall . . . have been convicted of any felony which has . . . been annulled or which is . . . eligible for annulment under New Hampshire law.” RSA 500

- A:7

- a, V.

The United States protests that “this is not what the statute says.” It asserts that the defendant “rewrite[es] the statute to convert it from a law describing the conditions under which someone is disqualified from jury service into a law describing the con ditions under which someone’s right to jury service is restored.” Such a construction, the United States maintains,
conflicts with our policy of interpreting “legislative intent from the statute as
written” and our policy t hat we “will not consider what th e legislature might
have said or add language that the legislature did not see fit to include.” Strike
Four v. Nissan N. Am. , 164 N.H. 729, 739 (2013) (quotation omitted)

.

Notwithstanding the author ity of these interpretive rules , the defendant’s
elim ination of the double negative from the statute also has some support as a method of statutory construction. S ee , e.g. , Independent Bankers Ass ’n of
America v. Clarke , 743 F. Supp. 687 , 690 (W.D. Mo. 1989) (noting that “the negative language used in [a st ate statute dealing with savings and loan associations] amounts to an affirmative grant of branching authority because of the double negative, i.e., ‘no association may establish . . . without’ can be read as ‘an association may establish . . . with’”)

, af f’d , 917 F.2d 1126 (8 th Cir. 1990) ; State v. Myers , 621 N.E.2d 881, 884 (Ohio Ct. App. 1993) (noting that “[t]he terms ‘no’ and ‘without’ used in the same [statutory] clause create a double negative, which gives the provision a positive meaning”). The def endant contends that his “construction comports with the plain meaning of ‘eligibility for annulment’” because “[a] conviction is eligible for annulment if it qualifies for annulment, but has not yet been actually annulled.” He a rgues that “[o]ne clause [of the statute] refers to an inchoate state

– eligibility for annulment

– while another clause refers to an actualized state

– completed annulment. ” Because “[o]ne state ripens into the other state,” he contends, both states

cannot ex ist simultaneously

. He n ot es that both clauses must “ be given meaning and effect,” and asserts that both are necessary, because the second clause, regarding eligibility for annulment, “would not cover those convictions
that have been annulled.”

The Unite d States, on the other hand, disputes that the two clauses in
RSA 500

- A:7

- a, V describe “inchoate” and “actualized” states that can never coexist. It posits two circumstances in which “ a prospective juror could have
an annulled conviction which still is i neligible for annulment under New Hampshire law ” : (1) an out

- of

- state conviction that was annulled in the convicting state but which is ineligible for annulment under New Hampshire law; and (2) a New Hampshire conviction “erroneously annulled” by a New6

Hampshire court. Citing these circumstances, the United States maintains
that under its interpretation, each clause in RSA 500

- A:7

- a, V has independent meaning.

W e conclude that both the United States’ and defendant’s proffered
construction s are reasona bl e

. Accordingly, because RSA 500

- A:7

- a, V’s “language is subject to more than one reasonable interpretation, we will resolve the ambiguity by determining the legislature’s intent in light of legislative history.” Appeal of Naswa Motor Inn , 144 N.H. 89, 90 (1999).

RSA 500

- A:7

- a was enacted in 1998 , originating as House Bill 616

- FN.
See Laws 1998, 237:5. As introduced in January 1997, HB 616

- FN contained the following provision: “ V. A juror shall not have been convicted of any felony
which has not b een annulled, or of any misdemeanor involving a crime of moral turpitude which has not been annulled.” House Bill 616

- FN, available at http://gencourt.state.nh.us/SofS_ Archives/1998/ house/ HB616H.pdf

. The bill was referred to the Judiciary and Family Law Committee, N.H.H.R. Jour.
89 (1997), which reported that the bill ought to pass with amendment; specifically, an amendment striking section V

. N.H.H.R. Jour. 267 (1997)

. The bill as amended was passed by the House and referred to the House Finance

Committee. Id

.

Following an inexpedient to legislate vote by the House Finance Committee, N.H.H.R. Jour. 620 (1997), the bill was re

- referred to the Judiciary and Family Law Committee, which again reporte d that the bill ought to pass
with amendment. N.H.H.R. Jour. 86 (1998 ). The relevant amendment for our purposes is the reinsertion of section V in the following form: “V. A juror shall not have been convicted of any felony which has not been annulled o r which is not eligible for annulment under New Hampshire law.” Id

. The state ment by Representative Janet G. Wall for t hat committee re ads as follows:

The committee recognizes the importance of having a jury of one’s

peers and that jury pools have been dwindling. In an effort to rectify the problems, the committee studied the “ Report of the Superi or Court Reform Study Committee” which came out on August 15, 1997, and worked with the sponsor to reach a
reasonable conclusion. The amendment allows for a m aster blend of drivers’ licenses and voting checklists, takes away all exemptions from serving, and disallows felons whose convictions have not been annulled or whose convictions are not eligible for annulment. The committee agreed unanimously on the bill as amended.

Id

.7

The Report of the Superior Court Reform Study Committee

, to which the House Committee on Judiciary and Family Law’s report referred, stated, in pertinent part:

There is currently no statute in New Hampshire which prohibits

. . . convicted felons

. . . from sitting on a jury. . . . Convicted felons are . . . eligible for service under current law. While there are degrees of felonies and varying passages of time from conviction, a standard policy regarding felony convictions shoul d be enacted to bring some certainty to this particular matter.

. . .

The committee recommends that legislation be enacted . . . to prohibit convicted felons from jury service who are not eligible to
have their convictions annulled . The committee feels that convicted felons who are eligible for annulment are of sufficient rehabilitation to permit their service on juries, and that those who cannot receive annulments ought not to be allowed the privilege of
service.

Report of the Superior Court Jury Refor m Study Committee 11 (August 15, 1997)

.

Following its passage by the House, N.H.H.R. Jour. 236 (1998), HB 616

- FN was introduced in the Senate and referred to the Senate Committee on Judiciary

, N.H.S. Jour. 72 (199 8 ). Representative David Mittleman, the b ill’s prime sponsor, addressed the committee, in relevant part, as follows:

The third thing that the bill does, it clarifies when a felon can serve on a jury. When we move to a system of choosing jurors by driver’s licenses, a number of county prosecutor s saw more and more felons arriving in the jury pools. It just so happens that felons tend to drive more so than they tend to vote.

What this bill does, it represents compromise between some various factions in the House. But it says, “ . . . if you’ve been convicted of any crime, a felony in particular, that if you are not eligible to have your conviction annulled, then you are not eligible to serve on a jury.” For example, there are certain felonies you cannot have your conviction annulled for ten ye ars, until after you’ve served your sentence. This would track that pattern down, so that if you can’t get it annulled, you can’t serve on a jury. There is no right to sit on a jury, rather it’s just a duty that we impose upon a citizen.8

Transcript of Senate Committee on Judiciary

, available at N.H. Suprem e Court, Joint App. at 29, No. 2 013

- 0825. The bill passed in the Senate. N.H.S. Jour. 1082 (1998).

The defendant argues this legislative history supports the District Court’s interpretation of RS A 500

- A:7

- a, V. He notes , among other things, that the
relevant version of RSA 500

- A:7

- a, V was proposed by the House Committee o n Judiciary and Family L aw “ on the heels of the Superior Court committee’ s report” and acknowledged that report. The United S tates counters that although the Superior Court committee “recommended a rule disqualifying jurors whose convictions were not eligible for an annulment,” nothing in the legislative history “suggest[s] that the actual juror qualification bill was drafted

to enact this recommendation.” In fact, the United States argues, “the House Committee rejected the Study Committee language and added language disqualifying those with unannulled convictions. The defendant takes no account for the textual change made to t he Study Committee Report
recommendation.”

The United States’ argument assumes that the actual annulment clause was added to eligibility language adapted from the superior court study committee’s recommendation. The legislative history, however, indicates the opposite progression. The initial ver sion of section V, which determined juror qualification based upon whether the prospective juror had actually had any disqualifying conviction annulled, failed to be recommended for passage by the House Committee on Judiciary and Family Law. N.H.H.R. Jour. 267 (1997). An amended version, without any convicted felon disqualification, failed to be approved by the House Finance Committee. N.H.H.R. Jour. 62 0 (1997)

. The version that was eventually enacted revived the actual

- annulment component
and added to it a component referencing eligib i l ity for annulment

. See Laws 1998, 237:5; see also 2A N. Singer & J.D. Singer, Statutes and Statutory
Construction § 4 8 : 4 , at 562

- 63 (7th ed. 2007) (stating that “the history of events during the process of enactment, from its introduction in the legislature to its final validation, has generally been the first extrinsic aid to which courts have turned in attempting to construe an ambiguous act” and noting that “[l]egislative history can

. . . consider part of a statute that never came into existence” because, for instance, “the language under question was rejected by the legislature”); Chesapeake Industries v. Comptroller , 475 A.2d 1224, 1226

- 27, 1229 (Md. Ct. Spec. App. 1984) ( discerning legi slative intent from bill that failed to make it through Ways and Means Committee).

The United States contends that the purpose of the disputed language is to function as a safety net of sorts, catching : (1) convictions that were imposed and subsequently annulled out

- of

- state, but which would not be eligible for annulment under New Hampshire law ; a nd (2) erroneously annulled New Hampshire convictions. It backs its argument with both textual support ( contending that its construction “provides an explanati on for the legislature’s9

deliberate use of ‘under New Hampshire law’”) and policy reasons ( contending
that “[t] he legislature presumably would not have favored allowing someone on a New Hampshire jury who was convicted of such a serious crime that
annulmen t was not an option under New Hampshire law”). The proffered textual support reprises a plain meaning analysis, which , as we have explained above, could reasonably support t he competing construction s , thereby

p rompt ing us to consult legislative history ; t he proffered policy reasons are
found nowhere in the legislative history.

The defendant, on the other hand, argues that “after a statute that conditioned jury service on actual annulment failed, the current version was proposed to ensure a sufficiently broad jury pool, based on a legislative judgment that a person who is eligible for annulment has been sufficiently rehabilitated to serve as a juror.” Th is argument is consistent with th e legislative history . Although RSA 500

- A:7

- a, V added a disqualific ation from jury service that had not previously existed in New Hampshire law, and in that way shrank the universe of available jurors, the legislative history indicates
that RSA 500

- A:7

- a was also intended to “rectify the problem[]” of dwindling jury pools

. N.H.H.R. Jour. 86 (1998)

. Thus, it is reasonable to read the
addition of the el igible

- for

- annulment language as an attempt to broaden the pool of potential jurors to include those convicted felon s who, although not having actually obtained an annulment , were nevertheless thought to have been “sufficiently rehabilitated to serve as a juror.” This interpretation is supported by the legislative history showing that prior to adding the eligible

for

- annulment language, the House Committee on Judiciary and F amily Law consulted a Superior Court Reform Study Committee report that equated “sufficient rehabilitation to permit their service on juries” with eligibility for annulment, not actual annulment. Report of the Superior Court Jury Reform Study Committee

, s upra at 11. We conclude that the defendant’s interpretation of RSA 500

- A:7

- a, V is supported by the statute’s legislative history.

The United States nevertheless argues that the defendant’s construction
of the statute would lead to an absurd result “wher e two felons committed the same crime and engaged in the same post

- conviction conduct. ” It explains:

If one of the se 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 treated differently, and yet this is precisely the result that defendant’s construction would produce.10

Although such a result may appear counterintuitive, we note that RSA 500

- A:7

- a deals only with the initial qualification of jurors

– their eligibility to be in the jury pool. Individu al jurors are still subject to challenge at the jury selection stage

. Prospective jurors may be examined on voir dire by the court in both civil and criminal cases, RSA 500

- A:12 (2010) , :12

- a (2010) (amended 2014)

, and by counsel in civil cases “in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause

, ” RSA 500

- A:12

-

a ; see Laws 2014, 40:1 (amending RSA 500

- A:12

- a to apply to criminal as well as civil cases, effective January 1, 2015)

. Presumably, a felon who has not sought an annulment of his conviction would be scrutinized by the court and counsel for suitability for jury service. Thus, the absurd result posited by the
United States may be more theoretical than real.

Finally, we note that the legislature amended RSA 500

- A:7

- a in 2014.

See Laws 2014, 204:33. Section V, as amended, reads: “A juror shall not have been convicted of any felony unless the conviction has been annulled.” Id

. This amendment does not affect our interpretation of RSA 500

- A:7

- a i n its prior
form. Accordingly, we answer the certified question in the affirmative.

Remanded

.

DALIANIS, C.J., and LYNN, CONBOY

, and BASSETT, JJ., concurred.