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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 AMERICA

                                        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.
      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 facts 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 affirmative.

       The First Circuit’s order 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), based upon a prior state
felony conviction. He moved to dismiss that count on the ground that he was
not a felon under section 922(g)(1) pursuant to an exception provided 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 which 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 exception [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 rights to vote and to hold public office were
restored by operation of state law before the date of the federal offense,
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.
See 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 the District of New Hampshire (DiClerico, J.) adopted
the defendant’s reading of RSA 500-A:7-a, V and dismissed 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 and


                                        2
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 omitted).
“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).

      The United States, as well as both amici curiae, correctly note that RSA
500-A:7-a, V should be read in conjunction with the statute governing
annulments, 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,
334-35 (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 amici 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 provides, 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,”
except 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 be brought more frequently than every 3 years thereafter.” RSA
651:5, IV (2007). 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 violation of 18 U.S.C. § 922(g)(1), paragraph V
stated: “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 term 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 (2007). 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,
VI.

       The United States contends that “the ‘which is not eligible for annulment
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 the


                                        3
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 temporal requirements for petitioning for annulment.”

       We need not determine which, if any, of these proposed constructions are
correct in order to answer the certified question. Whatever RSA 500-A:7-a, V
means by “not eligible for annulment,” the United States concedes that “there
is no dispute that the defendant’s conviction is eligible for annulment under
New Hampshire law.” Thus, the only question before us is: Given that the
defendant, despite that undisputed eligibility, has not obtained annulment of
his conviction, is he nevertheless qualified to serve as a juror?

       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 juror 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] finding 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 Hampshire law, then that conviction does not disqualify
a person from jury service.” The defendant contends that “the statute excludes
from jury service only persons with felony criminal convictions of a specified
status. If a felony conviction has been annulled, the person is not disqualified.
If a felony conviction is eligible for annulment, the person is not disqualified.”



                                        4
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 conditions 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 that we “will not consider what the 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 authority of these interpretive rules, the defendant’s
elimination of the double negative from the statute also has some support as a
method of statutory construction. See, 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 state 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’”), aff’d, 917 F.2d 1126 (8th 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 defendant
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 argues 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 exist simultaneously. He notes 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 United 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 ineligible 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 New



                                         5
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.

      We conclude that both the United States’ and defendant’s proffered
constructions are reasonable. 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 been 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 reported 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 or which is
not eligible for annulment under New Hampshire law.” Id. The statement by
Representative Janet G. Wall for that committee reads 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
      Superior 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 master 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.




                                        6
      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 should
      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 Reform 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 (1998). Representative David Mittleman, the bill’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 prosecutors 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 years, 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.



                                         7
Transcript of Senate Committee on Judiciary, available at N.H. Supreme Court,
Joint App. at 29, No. 2013-0825. 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 RSA 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 on
Judiciary and Family Law “on the heels of the Superior Court committee’s
report” and acknowledged that report. The United States 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 the 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 version 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. 620 (1997). The
version that was eventually enacted revived the actual-annulment component
and added to it a component referencing eligibility for annulment. See Laws
1998, 237:5; see also 2A N. Singer & J.D. Singer, Statutes and Statutory
Construction § 48:4, 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 legislative 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; and (2) erroneously annulled New
Hampshire convictions. It backs its argument with both textual support
(contending that its construction “provides an explanation for the legislature’s


                                         8
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
annulment 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 the competing constructions, thereby
prompting us to consult legislative history; the 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.” This argument is consistent with the
legislative history. Although RSA 500-A:7-a, V added a disqualification 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 eligible-for-annulment language as an attempt to broaden the
pool of potential jurors to include those convicted felons 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 Family 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, supra 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 “where two felons committed the
same crime and engaged in the same post-conviction conduct.” It explains:

      If one of these 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.




                                        9
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. Individual 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 in its prior
form. Accordingly, we answer the certified question in the affirmative.

                                                     Remanded.

      DALIANIS, C.J., and LYNN, CONBOY, and BASSETT, JJ., concurred.




                                          10
