2001 SESSION

01-0972

04/01

HOUSE BILL 733

COMMITTEE: Judiciary

ANALYSIS

This bill removes all references to rebuttable presumption from the statutory laws of the state.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

01-0972

04/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand One

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Municipal Electric, Gas, or Water Systems; Reference Deleted. Amend RSA 38:3 to read as follows:

38:3 By Cities. Any city may initially establish such a plant after 2/3 of the members of the governing body shall have voted, subject to the veto power of the mayor as provided by law, that it is expedient to do so, and after such action by the city council shall have been confirmed by a majority of the qualified voters at a regular election or at a special meeting duly warned in either case. Such confirming vote shall be had within one year from the date of the vote to establish such a plant[, and if favorable, shall create a rebuttable presumption that such action is in the public interest]. If the vote to establish a plant is unfavorable, the question shall not be again submitted to the voters within 2 years thereafter.

2 Municipal Electric, Gas, or Water Systems; Reference Deleted. Amend RSA 38:4 to read as follows:

38:4 By Towns or Village Districts. Any town or village district may initially establish such a plant after 2/3 of all the voters present and voting at an annual or special meeting, duly warned in either case, have voted by ballot with the use of the checklist that it is expedient to do so. [A favorable vote to establish such a plant shall create a rebuttable presumption that such action is in the public interest.] If such vote to establish a plant is unfavorable, the question shall not be again submitted to the voters within 2 years thereafter.

3 Municipal Electric, Gas, or Water Systems; Reference Deleted. Amend RSA 38:5 to read as follows:

38:5 By Unincorporated Towns and Unorganized Places. Any unincorporated town or unorganized place may initially establish such a plant after 2/3 of the members of the county convention shall have voted that it is expedient to do so, and, if there are any registered voters in that unincorporated town or unorganized place, after such action by the county convention shall have been confirmed by a majority of the qualified votes in that unincorporated town or unorganized place at a regular election or at a special meeting duly warned in either case. Such confirming vote shall be had within one year from the date of the vote to establish such a plant[, and if favorable, shall create a rebuttable presumption that such action is in the public interest]. If the vote to establish a plant is unfavorable, the question shall not be again submitted to the voters within 2 years thereafter.

4 Taxation of Legacies and Successions; Taxability and Rate; Reference Deleted. Amend the section heading in RSA 86:6-a to read as follows:

86:6-a [Rebuttable Presumption] Gifts Made Prior to Death of Grantor or Donor.

5 Lead Paint Poisoning and Control; Property Owner Notification; Reference Deleted. Amend RSA 130-A:6-a, II to read as follows:

II. Eviction of a tenant based on the presence in the dwelling or dwelling unit of a child with a blood level of 15 to 19.9 micrograms per deciliter shall be unlawful. [There shall be a rebuttable presumption that any] Any eviction action[,] instituted by the owner within 6 months of receipt of the notice sent by the department pursuant to paragraph I, [is] shall constitute an action based on the child's elevated blood lead level. If a court finds that an eviction is based on the child's elevated blood lead level, it shall deny the eviction and award damages to the tenant pursuant to RSA 540:14, II. However, if an owner in response to the notice from the department discovers a lead exposure hazard in the dwelling or dwelling unit, the owner may proceed with relocation of the tenants, provided that the owner meets the requirements of RSA 130-A:8-a, I or II.

6 Elderly and Adult Services; Office of the Ombudsmen; Reference Deleted. Amend RSA 161-F:18 to read as follows:

161-F:18 Immunity from Liability. Any person, institution, or official who in good faith participates in the registering of a complaint, or who in good faith investigates that complaint or provides access to those persons carrying out the investigation or who participates in a judicial proceeding resulting from that complaint, shall be immune from any civil or criminal liability that might otherwise result by reason of these actions. [For the purpose of any civil or criminal proceedings, there will be a rebuttable presumption that any person acting pursuant to this subdivision did so in good faith. ]

7 Retail Vehicle Dealer; Reference Deleted. Amend RSA 259-89-a to read as follows:

259:89-a Retail Vehicle Dealer. "Retail vehicle dealer" shall mean a person engaged in the motor vehicle business who sells motor vehicles to the general public, or demonstrates for sale vehicles on consignment to the general public. [There shall be a rebuttable presumption that any] Any person who sells or who acts as an agent of a seller for 5 or more vehicles at retail to the general public in a consecutive 12-month period [is] shall be deemed to be a retail vehicle dealer.

8 Uniform Management of Institutional Funds; Reference Deleted. Amend RSA 292-B:6 to read as follows:

292-B:6 Standard of Conduct. In the administration of the powers to appropriate appreciation, to accumulate income or add income to principal, to make and retain investments, and to delegate investment management of institutional funds, members of a governing board shall exercise general standards of prudent investment as defined under RSA 564-A under the facts and circumstances prevailing at the time of the action or decision. In so doing they shall consider long and short term needs of the institution in carrying out its educational, religious, charitable, or other eleemosynary purposes, its present and anticipated financial requirements, expected total return on its investments, price level trends, and general economic conditions. Provided, however, the appropriation of appreciation in any year in an amount greater than 7 percent of the fair market value of the assets of the institution's endowment funds (calculated on the basis of market values determined at least quarterly and averaged over a period of 3 or more years) shall [create a rebuttable presumption of] constitute imprudence on the part of the governing board.

9 Copying of Recorded Devices; Acts Prohibited; Reference Deleted. Amend the unnumbered concluding paragraph following RSA 352-A:2, II to read as follows:

Possession of 5 or more duplicate copies or 20 or more individual copies of such recorded articles, produced without the consent of the owner or performer, shall [create a rebuttable presumption that such] be deemed to be the use of such articles [are intended for sale or distribution] with the intent to sell or distribute in violation of this section.

10 Motor Vehicle Leasing; Acknowledgment by Lessee; Reference Deleted. Amend RSA 361-D:7, II to read as follows:

II. The lessee's written acknowledgment, conforming to the requirements of this section, of delivery of a completely filled in copy of the agreement, and a copy of such other documents shall [be a rebuttable presumption of] constitute valid delivery in any action or proceeding by or against a holder without knowledge to the contrary when the holder acquired interest in the agreement.

11 Motor Vehicle Leasing; Open End Leasing; Reference Deleted. Amend RSA 361-D:15, II to read as follows:

II. [There shall be a rebuttable presumption that the residual value is unreasonable to the extent that] Where the residual value exceeds the realized value at lease end by more than 3 times the average payment allocable to a monthly period under the lease the residual value shall be deemed unreasonable. This presumption shall not apply when the excess residual value over realized value is due to physical damage to the motor vehicle beyond reasonable wear and use, or to excessive use, and the lease may set standards for such wear and use if such standards are not unreasonable.

12 Uniform Commercial Code; Servicing of Warranties; Reference Deleted. Amend RSA 382-A:2-329(2) to read as follows:

(2) Every manufacturer who makes an express warranty pursuant to a consumer sale and designates a representative within this state to provide warranty service shall be liable to such service representative in the amount equal to that which is normally and reasonably charged by the representative for like service and repairs rendered to retail consumers who are not entitled to warranty protection. This equality of normal and reasonable charges shall apply both to labor and parts. [It shall be a rebuttable presumption affecting the burden of producing evidence that the] The normal and reasonable cost of service or repair [is] shall be deemed to be an amount equal to that which is charged by said service representative for like services or repairs rendered to service or repair customers who are not entitled to warranty protection. The manufacturer may not waive such liability.

13 Child Support Guidelines; Reference Deleted. Amend RSA 458-C:4, II to read as follows:

II. [There shall be a rebuttable presumption in] In any proceeding for the award of child support, [that] the amount of the award which would result from the application of guidelines provided under this chapter [is] shall be deemed to be the correct amount of child support. [A written finding or a specific finding by the presiding officer on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined by using the criteria set forth in RSA 458-C:5, shall be sufficient to rebut the presumption in such case.]

14 Guardians and Conservators; Who May be a Guardian; Reference Deleted. Amend RSA 464-A:10, II to read as follows:

II. Any competent adult may nominate one or more persons to be guardian of his person or his estate, or both his person and his estate, and one or more substitutes in case of a nominee's inability to serve by a written instrument, executed in accordance with the requirements of RSA 477:9, and may name in such instrument any persons, other than a public guardianship and protection program, he wishes to exclude from consideration as guardian. Such nomination and exclusion shall continue until revoked, shall be effective for both ordinary guardianships and temporary guardianships under RSA 464-A:12, and shall survive the subsequent mental or physical disability or incompetence of the signer. A person nominated as guardian who is otherwise legally qualified and willing to serve shall be appointed unless the court finds as a fact that such person would not be able to carry out the reasonably foreseeable duties of a guardian in the particular circumstances. Under no circumstances shall the court appoint as guardian a person excluded from consideration by name in the instrument. [This paragraph shall be construed to create a rebuttable presumption that the person nominated as guardian shall be so appointed]. This paragraph shall not be construed to limit the ability of the court to remove any guardian appointed under this paragraph.

15 Actions Against Tenants; Reference Deleted. Amend the introductory paragraph of RSA 540:13-b to read as follows:

540:13-b Evidence of Intent to Retaliate. Unless the court finds that the act of the tenant in making a report or complaint or in initiating an action or in organizing relative to alleged violations by a landlord was primarily intended to prevent any eviction, a [rebuttable presumption that such] possessory action [was in retaliation of the tenant's action shall be created] shall be deemed to be retaliatory when any possessory action, increase in rent or any substantial alteration in the terms of the tenancy is instituted by a landlord within 6 months after:

16 Trustees of Estates; Reference Deleted. Amend RSA 564:21, II to read as follows:

II. In the case of any corporate or professional trustee of a non-charitable trust, [the probate court recognizes a rebuttable presumption that] reasonable compensation for the trustee's services shall be defined by that institution's or professional's published inter vivos fee schedule or fee agreement, in effect at the time services are rendered. Corporate or professional trustees shall submit an affidavit to the probate court reciting their inter vivos fee schedule or fee agreement, in effect at the time services were rendered; a statement that the charges for the services rendered in this account are in accordance with the charges in that fee schedule or fee agreement; and a certification that the beneficiaries were notified of that fee schedule or fee agreement. Preparation of any trustee account or appearance at probate court, by a corporate or professional trustee, if required, shall not ordinarily be an additional charge.

17 Bail and Recognizances; Reference Deleted. Amend the unnumbered concluding paragraph following RSA 597:7-a, III (b) (2) to read as follows:

If there is probable cause to believe that, while on release, the person committed a federal or state felony, [a rebuttable presumption arises] it shall be deemed that no condition or combination of conditions will assure that the person shall not pose a danger to the safety of any other person or the community. If the court finds that there are conditions of release that shall assure that the person will not flee or pose a danger to the safety of himself or any other person or the community, and that the person will abide by such conditions, he shall treat that person in accordance with the provisions of RSA 597:2 and may amend the conditions of release accordingly.

18 Dealing in Counterfeit Recordings; Reference Deleted. Amend RSA 638:6-a, III to read as follows:

III. Possession of 5 or more duplicate copies or 20 or more individual copies of counterfeit recordings shall [create a rebuttable presumption that] be deemed to be the use of such recordings [are intended for sale or distribution] with the intent to sell or distribute in violation of this section.

19 Effective Date. This act shall take effect January 1, 2002.