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Bar Journal - June 1, 2000

Lex Loci: A Survey of Recent NH Supreme Court Decisions

By:
 

It really doesn’t surprise the author that it’s ok to operate live nude dancing shows1  for profit in the town of Seabrook. It’s next to Massachusetts, isn’t it? What is surprising is that such live nude dancing shows are prohibited within 500 feet of the town boundaries. Is it possible that Seabrook might corrupt its neighbors to the south, the commonwealth of Massachusetts and the town of Salisbury? The skanky goings-on in Seabrook was the subject of a recent opinion of the Supreme Court, Seabrook v. Vachon Management, Inc., decided February 8, 2000. The case is a real eye opener, involving the efforts of the town of Seabrook to stop live nude dancing at the defendant’s place of business because it was located within the prohibited area.

The defendant ran, in the words of the town ordinance, a "sexually oriented business" under the libidinous name of "Leather and Lace." The case came to the Supreme Court from the denial of an injunction against the defendant sought by the town, the lower court’s denial being

on the basis that live nude dancing entertainment was lawful…[in a portion of the defendant’s premises] at the time the town began to regulate sexually-oriented businesses in 1994. In addition, the court concluded that the activity existed with the knowledge and apparent acquiescence of town officials. It held that the fantasy booths qualified as a nonconforming use, and were thus unaffected by the 1994 zoning ordinance on sexually oriented businesses.

Leather and Lace, it appeared on close inspection, had operated from time to time (1) mud and oil wrestling before paid spectators (presumably in the nude in order to be "sexually oriented"—the author’s not quite sure of that); (2) staged for pay bachelor parties (everyone it appears, but the author, knows what sort of "sexually oriented" activities happen at these affairs); (3) operated "video booths" where, for pay, viewers could view pornographic videos; and finally, what appeared to be the only activity objected to by the town, (4) operated "fantasy booths" where, for pay, viewers could view live nude dancing.

The Supreme Court conceded that all but the last activity had been operated at the defendant’s premises since 1992 and even the fantasy booths had operated for several years after the enactment of a new 1994 town ordinance which purported to ban such "sexually oriented businesses." The Court even found that the town fathers knew that Leather and Lace operated in violation of the ordinance after the date of the ordinance [How did they know? Were they patrons?] and did nothing about it for several years. However, unlike the superior court [one wonders if the lower court took a view?], the Supreme Court found a peg to hang its hat on, finding that the sexually oriented use of the defendants’ business which preceded the enactment of the ordinance do "not qualify as a non-conforming use because it was not a lawful pre-existing use." The Court held that the town ordinance required a site plan review to change from one permitted use to another and the defendant had not sought such a review when required to do so as it changed from sexually oriented use to another such use prior to the enactment of the ordinance.

As a "straight arrow," the author feels he is not sufficiently competent to adequately comment on this activity to the intellectual satisfaction of his readers. It is a matter about which the author obviously is required to do more research and he’ll report his findings in a later column. The oft-quoted formulation of Justice Potter Stewart of the U.S. Supreme Court concerning pornography comes to mind. To paraphrase, he said "he couldn’t define what was pornographic, but he would recognize it if he saw it" and this presents the author with a First Amendment compulsion—he too wants to see it so he can decide if it’s pornographic. If it is, as he should, he’ll stop looking!!

Appeal of Fred Fuller Oil Co., Inc., decided January 31, 2000, is a case involving whether or not a business had violated the Whistleblowers’ Protection Act, RSA 275-E, by terminating an employee who refused to work on a Sunday. The Supreme Court had before it a case of first impression: since the Act does not define what constitutes a report nor had the Court previously been called upon to decide its parameters, the Court was called upon for the first time to define what constitutes a report. The plaintiff was a fuel oil driver who, in the cold weather, winter fuel crisis of 1996, was terminated after many consecutive days of long hours of work (more than sixty hours a week) when he refused to work on a Sunday, testifying that he had told his employer that "I need a day off, I was tired."

The Supreme Court unanimously rejected the employer’s contention that the employee’s report was required to cite to a particular statute or regulation, rather, holding that the Whistleblower Act

reveals no requirement that an employee’s report include…a reference to a violation of the law….[T]o impose such a requirement would exclude an unsophisticated employee from the protections of the Act simply because he or she failed to invoke a specific law that the employer had allegedly violated. We conclude that the better approach is to presume that an employer is familiar with the laws and regulations governing its business and to consider a report to have been made if a reasonable employer would have understood from an employee’s complaint that the employee was reciting a violation of law.

With that reasoning, it wasn’t surprising that the Supreme Court held that the employee had met his burden under the Act.

The much heralded, "kinder and gentler," Supreme Court which has announced that it will be more forgiving of technical violations of the deadlines imposed by its rules, particularly where pro se litigants are involved, did not help the plaintiff taxpayers in Phetteplace v. Town of Lyme, decided January 31, 2000. Here, the taxpayers mailed their abatement appeal documents to the superior court on Saturday, August 30, 1997, but they arrived at the superior court on Tuesday, September 2, 1997 since September 1st that year was a holiday, Labor Day. The Court found that this violated the specific deadline imposed by the statute for such appeals, (RSA 76:17) which provides that an abatement appeal to the superior court must be filed "on or before September 1 following the date of notice of tax." The taxpayers’ pointed to Superior Court Rule 12(1) which provides that when computing periods of time prescribed by the Rules, where the last date falls on a Saturday, Sunday or legal holiday (as happened here), that the period shall extend until the end of the next day that is not a Saturday, Sunday or legal holiday. The Court held that that Rule didn’t apply here because an appeal under RSA 76:17 "does not involve the computation of a time period…[but] requires that all appeals be filed on or before September 1, a date certain." The lesson of the case appears to be that while the superior courts and the Supreme Court can be kinder and gentler, the legislature can refuse to be.

McDill v. Environamics Corporation,2  decided February 3, 2000, is an evidentiary case of first impression, involving the appropriately named "after-acquired evidence rule." Here, the defendant employee controller had a written employment contract by which he could be fired "for cause" only. It appeared in the course of the plaintiff’s employment that his daughter was hired by the corporation on two separate occasions to work on a temporary basis. Although not hired by the plaintiff employee himself, the hiring appeared to violate an unwritten, oral, rule of the parent of the employer defendant against hiring children of management employees. After the second hiring, the defendant’s president terminated the plaintiff’s employment for violating the questionable oral rule and the plaintiff sued and received a jury verdict for $65,000.

In the course of trial, however, it appeared that the plaintiff employee had copied a "private facsimile communication" [hereinafter "fax"] to the defendant corporation’s president (involving an applicant for the plaintiff’s job) without the knowledge of the defendant employer or its president until trial, when it was offered by the plaintiff employee in a surprise attack. Following its disclosure at trial, the defendant’s president testified in chambers that had he known that the fired employee had improperly copied the fax, it would have been a cause for discharge. However, the trial court ruled that the defendant "was precluded from introducing [the defendant’s president’s] proffered testimony that copying the facsimile ‘would be a violation or breach of trust and that might even be a further reason for termination.’"

The Supreme Court opined that "the application of the doctrine [of after-acquired evidence] as a limit to damages and liability presents a question of first impression." The Court, restricting its ruling only to cases that involve termination for cause and not others, adopted the rule of several other jurisdictions which provides that, in contract actions (unlike tort actions),

after-acquired evidence of an employee misconduct is a defense to a breach of contract action for wages and benefits lost as a result of discharge if the employer can demonstrate that it would have fired the employee had it known of the misconduct….Furthermore, contract principals dictate that an employer may be permitted to use after-acquired evidence as a complete bar if it can prove that the employee’s wrongdoing… ‘undermine the very basis upon which [the employee] was hired.’

The Court thereupon reversed the trial court and remanded for further proceedings in accordance with its rulings.

Article 11, Part I, of the New Hampshire Constitution, relating to the right to vote, seems to be very clear since it provides that "[a]ll elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election….[excepting only persons] convicted of treason, bribery, or any willful violation of the elections laws of this state or of the United States." The legislature, going back many years, has enacted felon disenfranchisement statutes (RSA 607-A:2 and RSA 654:5) in seeming violation of this clear constitutional mandate. However, in Fischer v. Governor, decided March 24, 2000, a three person unanimous Supreme Court, in an opinion by Justice Broderick, unanimously upheld the validity of the disenfranchisement statutes. The Court carefully avoided another confrontation with an already seething legislature (a proposed constitutional amendment was pending at the time of the decision to overturn the Supreme Court in the event that it ruled against the disenfranchisement statutes). Justice Broderick first candidly acknowledged that "[a] fair reading of Article 11 in its present form would not support allowing the legislature to define voter qualifications." However, relying on the history of this constitutional provision which first came into our constitution in 1784, the Court found that the 1974 amendment to the provision did not intend to undo its earlier versions which clearly gave the legislature the power to determine qualifications for voting. The Court particularly pointed to the language of the Constitutional Convention of 1974 which had last offered an amendment to this provision and which explained to the voters on each ballot the nature of the changes proposed to be made in Article 11 and did not mention any change relating to the elimination of the legislature’s power to determine the qualification of voters. The Court found that, despite the unambiguous language of the constitutional provision, the legislature retained its right to disenfranchise certain voter classes including the incarcerated felon plaintiff. It’s often said that hard cases make bad law and this may be an example.

In an earlier column describing the case of DeMauro v. DeMauro,3  the author described this domestic relations battle as a "war that, like World War II, had several theaters of operation." Another theater of this war, [the Supreme Court, in an earlier decision,4  had remanded the matter to the trial court for a trial in conformance with its decision], ended when, after a three day hearing in the superior court, superior court Judge Murphy waded through some 385 separate pleadings and considered the situation where the wealthy defendant husband continued to "contemptuously absent" himself from court (a capias had been issued earlier for his arrest), and awarded the plaintiff wife a property settlement in the amount of $35,000,000. At least $7,000,000 to $8,000,000 of the award seems to be easily collectible since the plaintiff wife had obtained attachment of certain of the defendant’s assets in at least that amount. The collection of the remainder of the judgment will require the piercing of the defendant husband’s off-shore trusts. The closing of this chapter of the war should be considered just another skirmish in this poisonous marital termination.

Continuing his from time-to-time reminiscences of lessons learned from his almost forty years of practice of law in our state, the author well remembers "the good ol’ days" [the author has a partner who refers to the author’s tales of "olden times"], when the physical attachment of property was available upon the mere signing of a writ by a plaintiff attorney, the practice of which stopped abruptly when the U.S. Supreme Court in the early 70’s put an end to such strong arm practices. The mighty right of attachment is fondly remembered by "olden times" practitioners as a powerful creditor tool to bring recalcitrant debtors to heel. But the ease of use of such attachments was not always a benefit, as the author ruefully learned in one situation. The debtor defendant owned several thoroughbred race horses for which he had failed to pay rent for "stall space" at Rockingham Park, the author’s client. One of the horses, the author painfully remembers, had the colorful name of "Roman Ball." The author saw an easy remedy—a physical attachment of the thoroughbreds while still residing at "the track."

The author coaxed the timorous Rockingham County deputy sheriff to make a physical attachment of the steeds but as the author was soon to learn, "Roman Ball" and his compatriots soon became a ball and chain around the author’s neck. Not only was a hefty bond required to be posted by the deputy sheriff to protect him from any possible lawsuit, but to the author’s consternation, the deputy sheriff would not house the attached nags (as they soon became in the author’s view) at the plaintiff’s premises, but insisted upon safe and secure premises elsewhere, for which the author’s client had to pay a daily, and very expensive, rental rate. In addition, there were hay and feed charges. The worst was yet to come when the quaking deputy sheriff insisted that each horse be inspected daily, by a veterinarian of the deputy’s choosing, during their stay under the deputy’s care to assure the health of Roman Ball and his fellow nags, so that, as the author was slowly realizing, if a horse died during its stay under attachment, it would be the responsibility of the plaintiff and not the sheriff’s department. As the days wore on and the expenses mounted, the author and his client sought unsuccessfully to negotiate with the defendant, who seemed to be happy that his horses were being so well housed and well treated. The ignominious end of this humbling exercise of his client’s right of physical attachment is almost blotted from the author’s mind: he vaguely remembers releasing the horses from attachment, after incurring a cost that far exceeded the indebtedness owed his client. The moral of this tale of creditor, freely-obtained, access to attachment process is that you should be careful for what you wish since if you get it, it may prove to be calamitous to your professional dignity.

As this column was going to press, the sensational and disturbing developments concerning the integrity of the New Hampshire Supreme Court were coming to the public’s attention. The author doesn’t have time to comment about the attorney general’s investigation of Justice Thayer, his resignation and the response of the legislature by its opening up of an impeachment inquiry of the Chief Justice and/or other Justices of the Court. It is a very sad day for our citizens when the soundness of one of our three essential branches of government is called into question. Whatever the merits of the controversy turn out to be, New Hampshire will be the lesser as a result.

Hopefully, our constitutional system can withstand the shocks to which it is being subjected, without losing sight of the goal that the independence of our judicial system is essential to the preservation of our rights as citizens. The civil rights to which every American citizen are entitled are best protected by an independent judiciary, free of political pressures from the other branches of government or from majority rule imposed by an electoral process of selecting judges. A bulwark of our American democracy is an independent judiciary which all totalitarian regimes lack.

ENDNOTES

1. As this column was going to press, the U.S. Supreme Court addressed the issue of nude dancing in City of Erie, et al v. Pap’s A.M., tdba "Kandyland", 98-1161, 120 S.Ct. 1382 (2000).
2. The author’s firm represented a party to the action and, therefore, the author’s views may be colored.
3. 39 NHBJ, No. 3, 78 (1998).
4. 142 NH 879 (1998).
5. DeMauro v. DeMauro, Rockingham County Superior Court, 94-M-173.

The Author

Attorney Charles A. DeGrandpre is a director and treasurer in the firm of McLane, Graf, Raulerson & Middleton, P.A., Portsmouth, New Hampshire.

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