THE STATE OF NEW HAMPSHRE

SUPREME COURT

Waukewan Holdings, LLC

V

Jean Allan, et al

Case #2010-0051

MOTION FOR RECONSIDERATION PURSUANT TO RULE 22

NOW COMES, Jean E. Allan aka Jean E. Allan Sovik, pro se litigant for defendant with this instant Motion for Reconsideration pursuant to Rule 22; and in furtherance of this Motion states as follows:

On November 5, 2010 the Court issued an Order to wit: "Having considered the briefs and record submitted on appeal we conclude that oral argument in unnecessary in this case. See Sup Ct R 18(1). The respondent Jean Allan, appeals an order granting a petition of Waukewan Holdings, LLC to remove and dispose of the respondent’s personal property from real estate the petitioner acquired in foreclosure, and order denying her motions for reconsideration and to recuse or disqualify. We have reviewed the arguments in the respondent’s brief, and conclude that they are either not preserved, see State v Blackmere, 149 NH 47, 48 (2003), insufficiently developed, see Id at 49, or without merit warranting no further discussion, see Vogel v Vogel 137, NH 321,322 (1993). Accordingly we affirm. Broderick CJ, and Dalianis, Duggan, Hicks and Conboy JJ concurred.

A well accepted definition of the word ‘conundrum’ is: a logical postulation that evades a resolution. This instant Motion, and any and all subsequent filings after May 11, 2010, the date that the Notice of Order was delivered to Jean Allan cannot be recognized by this Court due to this Court’s own Rules and case law with respect to legal capacity for standing. The May 11th Notice of Order stated that defendant had been found ‘not competent’ by Laconia District Court Judge DeVries, on May 5, 2010. [see pages 147,148,149 Appellant’s Brief filed June 9 2010]. The effect of that Order instantly created an alleged situation whereby Appellant Allan, pursuant to New Hampshire law, "lacks the ability to perform the legal functions that are required by this Court to have standing as a pro se litigant". And, herein rests the "conundrum", as this Court already recognizes: This instant Motion also cannot be recognized as long as Appellant Allan has not been restored to competency.

  1. The plain error rule allows the Court to exercise its discretion to correct errors not raised in the trial court or in the notice of appeal. See id.; State v. Emery, 152 N.H. 783, 786 (2005). The rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result. Emery, 152 N.H. at 786. For the rule to apply: (1) there must be error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings. State v. Panarello, 157 N.H. 204, 207 (2008).
  2. This Court also ruled that "to satisfy the burden of demonstrating that an error affected substantial rights, the plaintiff must demonstrate that the error was prejudicial, i.e., that it affected the outcome of the proceeding. State v. Lopez, 156 N.H. 416, 425 (2007). These stated legal principles should extend to this Court as well.
  3. This Court was made aware by the Appellant, in her Brief, on pages 147,148,149 [id] that she hade been declared ‘not competent’ to stand trial by the Laconia District Court Judge in re: 09-cr-4147. The Judge’s cited the October 13, 2009 Report [hereinafter referred to as "Report"] submitted by the State Prosecutor, and authorized by the New Hampshire Office of the Forensic Examiner. The Judge also ruled that a hearing for the Restoration of Competency would be scheduled sometime in October, 2010. Since the "Report" opined that defendant Allan was not ‘restorable’ to competency, the Court did not remove defendant Allan for any treatment, at that time.
  4. The adjective incompetent as used in the legal sense of the word means not legally qualified: as a: 　lacking legal capacity (as because of age or mental deficiency); b: 　incapable due to mental or physical condition; c: 　lacking authority, power, or qualifications required by law; or lacking the ability, knowledge, legal qualification, or fitness to discharge a required duty or professional obligation. It is commonly accepted that the term incompetency has several meanings in the law. When it is used to describe the mental condition of a person subject to legal proceedings, it means the person is neither able to comprehend the nature and consequences of the proceedings nor able adequately to help an attorney with his defense. When it is used to describe the legal qualification of a person in civil law, it means the person does not have the legal capacity to enter a contract. When it is employed to describe a professional duty or obligation, it means that the person has demonstrated a lack of ability to perform professional functions.
  5. The legal procedure for declaring a person incompetent generally consists of three steps: (1) a motion for a competency hearing, (2) a psychiatric or psychological evaluation, and (3) a competency hearing.
  6. Defendant Allan has argued that all three prongs in her situation were not completed in ‘good faith’, but especially she has complained to the Laconia District Court that the last prong of the procedure was not met at all, and therefore the entire process is in violation of her constitutional due process rights.
  7. She has had no ability to cross examine the agency that authorized the "Report" that was faxed to the Laconia District Court on October 13, 2009. It was this "Report" that was relied upon in its entirety by Judge DeVries, in her May 5, 2010 Order. The May 5, 2010 hearing cannot be defined as a competency evidentiary hearing. It was a trial on the merit of the criminal trespass case. No expert witnesses appeared to opine on the "Report".
  8. In re: 09-cr-3147, defendant Allan was Ordered by the Laconia District Court to Appear on October 6, 2010 for a Procedural Hearing. [See attached Notice of Order]. Defendant Allan appeared before Judge McKenna on that date. State’s Prosecutor was not prepared to try the Competency Hearing at that time, so the Competency Hearing was scheduled for December 20, 2010. [See attached Notice of Order]
  9. One of the issues that State’s Prosecutor raised in the October 6 hearing, with the Court, was that defendant Allan has a related case pending in front of the New Hampshire Supreme Court, and for that [this instant Appeal] case to continue, and, or to be resolved, the issue of her competency needed to be settled. The Court concurred.
  10. It is a well established legal precedent that ‘If a party does not comprehend the nature and consequences of the contract when it is formed, they are regarded as having mental incapacity… A person who has been declared incompetent in a court proceeding lacks the legal capacity to enter into a contract with another. Such a person is unable to consent to a contract, since the court has determined that he does not understand the obligations and effects of a contract. A contract made by such a person is void and without any legal effect. This means that the person can legally declare the contract void, making it unenforceable. However, a voidable contract can be ratified by the incompetent person if the person recovers the capacity to contract.
  11. Although defendant Allan and appellant Allan firmly believe that the "Report" was made in bad faith, and was submitted to the Court as a ‘fraud upon the court’, as of this writing, and pursuant to this Court’s Rules, pro se Appellant Allan is constrained by it’s opinion, and the Laconia District Court’s reliance upon it. One apparent consequence is the issue as to whether Appellant Allan has legal standing to control this Appeal, and this places her firmly in a legal ‘conundrum’. And, she has been placed in this position without any due process, to include but not limited to: the violation of her rights to have rebuttal in an evidentiary hearing, which is contrary to this Court’s Order in State v. Veale, No. 2006-043 (N.H. 05/01/2009).
  12. Scheduling an evidentiary hearing after the damage has been done, i.e., this Court’s November 5th Order, is neither a legal, nor a satisfactory solution.
  13. In State v Veale the Court stated: "Having concluded that competency determinations can potentially damage the protected interest in reputation, we consider what process is required to protect that interest. See McLellan, 146 N.H. at 114. In so doing, we balance three factors: a) First, the private interest that will be affected by the official action; b) second, the risk of an erroneous deprivation of such interest through the procedures used, and c) the probable value, if any, of additional or substitute procedural safeguards; and d) finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [As this Court is aware of the damage model submitted by Appellant Allan et al the ‘private interest’ stakes are very high in this matter. And, the government ‘procedural safeguards’ to protect Appellant Allan et al private property rights are woefully lacking.]
  14. This Court also found that "An official branding of legal incompetence unquestionably entails some degree of social stigma. Cf. In re Richard A., 146 N.H. 295, 298 (2001) (recognizing "loss of liberty and social stigmatization" caused by civil commitment proceedings and describing them as "substantial"). This stigma may harm the defendant's own self-conception, see generally Mitnick, supra, and adversely affect a variety of liberty and property interests. Specifically, the defendant points to his "ability to conduct and control civil litigation," the potential estoppel effect of the incompetency finding in other proceedings, "all manner of professional licensing," employment decisions, "willingness of others to engage in commercial transactions," the ability to travel internationally, and finally the "right to purchase, possess, and sell firearms in some jurisdictions."
  15. "3A J. Moore & J. Lucas, Moore's Federal Practice p 17.26, at 17-210 (2d ed. 1989) (citing Donnelly v. Parker, 486 F.2d 402, 406-07 (D.C.Cir.1973) (implicitly assuming that law of domicile determines competence to represent oneself under Rule 17(c)). Thus, according to Professor Moore, the law of an individual's domicile determines the individual's competence to sue on his own behalf for the purposes of Rule 17(c). We agree and adopt that interpretation here: Federal Rule 17(c) Minor or Incompetent Person.

    16. (1) With a Representative.

    The following representatives may sue or defend on behalf of a minor or an incompetent person: a general guardian; a committee; a conservator; or a like fiduciary.

    (2) Without a Representative. A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem — or issue another appropriate order — to protect a minor or incompetent person who is unrepresented in an action.

  16. In re: Libertarian Party of NH, 158 NH 194, 195 (2008) this Court found that it may sua sponte raise the issue of whether a litigant has legal capacity to stand in front of it; or whether its necessary to appoint a guardian to protect the interests and rights of the litigant.
  17. In re: Guardianship of Paul T. Williams, Merrimack County, Merrimack County Probate Court found in 2008-331, that "Whether a party has standing presents a question of subject matter jurisdiction, which may be addressed at any time."
  18. As already stated in paragraph 1, [id] there are three prongs to test whether a plain error has been made by the court:

(1) the first prong is that ‘there must be error’: In the matter as to whether Appellant lacks legal capacity to stand before it, after the May 11, 2010 Notice of Order was delivered to defendant Allan: this court had Notice of that fact when Appellant filed her Brief on June 9, 2010, if not before; and, pursuant to this Courts own rules and definition Appellant Allan, at that time, lacked the legal capacity to stand alone as a Party to this instant Appeal. Pursuant to this Court’s own rules it should not have accepted any further pleading from Appellant Allan, but should have sua sponte appointed a guardian to continue the Appeal, or issued another appropriate order.

(2) the error must be plain; The error by this Court subsequent to May 11, 2010 Notice of Order is very plain: pursuant to its own rules and above cited case law.

(3) the error must affect substantial rights; In re: State v Veale [id] this Court has already opined that ‘competency’ is a substantial right and it should be subjected to the ‘strict scrutiny rule’. AND

(4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings: It is this prong that highlights the ‘conundrum’ for both this Court and Appellant Allan. Pursuant to this Court’s rules Appellant Allan lacks standing as a litigant to fully and fairly defend, and control the case, herself; or, as General Partner: the interests of the Gaia Family Limited Partnership, the owners of the physical contents or property located at 309 Waukewan Road, Center Harbor, NH; or, as Trustee of the Jean E. Vorisek Family Trust, the owners of the intellectual contents, and or real property located at 309 Waukewan Road Center Harbor, NH.

This Court has administrative control over all the lower courts in the State. It must recognize by now that when it made its November 5th Order it already had knowledge that one of it’s lower courts had made an unsustainable Order that found defendant Allan ‘not competent’, and that it did so without an evidentiary hearing, in violation of this Court’s rules; and further, with knowledge of it’s own rules and law- by proceeding to rule on this instant Appeal prior to the December 20, 2010 scheduled evidentiary hearing- this Court, in error, found that Appellant Allan did not sufficiently ‘develop her arguments’, or that they were ‘without merit’. A reasonable person could, and should, find this Court judicial and administrative actions raise serious question as to its "integrity or public reputation of [this instant] judicial proceeding[s]".

WHEREAS, this instant Motion as a matter of law, cannot be recognized by this Court, at this time; yet, Appellant Allan has no other choice but to file it, if for nothing else than to point out this Court’s plain errors as argued above.

THEREFORE, Appellant Allan would respectfully request that this Court:
  1. Void, or nullify, or set aside, its November 5, 2010 Order until after the December 20, 2010 Competency Hearing has been heard, and defendant Allan’s competency resolved;
  2. And, if defendant Allan has been restored to competency allow her to resubmit her Brief and other Motions based on newly discovered evidence that will more fully ‘develop’ Appellant’s Appeal;
  3. Or, appoint a guardian for Appellant Allan to represent her in this Appeal in order to refile the Brief and other Motions that were filed subsequent to May 11, 2010, and add the newly discovered evidence so that the Brief will be more fully ‘developed’;
  4. And, for any other relief that is just and mete.

Respectfully Submitted: Date: 11-9-10

Jean E. Allan, aka Jean E. Allan Sovik, and as General Partner for Gaia Family Limited Partnership and as Trustee of Jean E. Vorisek Family Trust.

[REDACT] (603) 581-6183

　

　

CERTIFICATION OF DELIVERY

I, Jean E. Allan aka Jean E. Allan Sovik, do hereby certify that on 9th day of November, 2010, I sent a true copy of this Motion to Peter Minkow, Box 325, Meredith, NH 03253.

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[This Page Last Updated on November 11, 2010]