Bar News - May 21, 2004
Supreme Court at a Glance ~ April 2004
By: Meredith L. Richardson
Administrative
Lower Bartlett Water Precinct v. Murnik, No. 2004-161
April 1, 2004: Reversed in part.
- Whether RSA 675:4, I, provides that a warrant article must state its question in the same way that an official ballot must present the question to voters.
Arcidi v. Town of Rye, No. 2003-238 (Easement)
April 5, 2004: Affirmed in part and reversed in part.
- Whether the town committed an unconstitutional taking because the town either did not have the right to use the easement or, if it did, the town’s use exceeded the scope of the easement.
- Whether installation and use of a subsurface water line was beyond the scope of the easement where the easement was in tended to provide secondary access to a hotel.
- Whether the plaintiff was entitled to attorneys’ fees as a result of the town’s use of the easement for underground utilities where there was no finding of bad faith on the part of the town and the plaintiff did not have a clearly defined and established right.
Cherry v. Town of Hampton Falls, No. 2003-121 (Zoning)
April 16, 2004: Reversed.
- Whether the planning board was unlawful or unreasonable to require the plaintiffs to establish that the design and construction of the proposed subdivision road would minimize detrimental impact upon the wetlands buffer and that no feasible alternative design would have less detrimental impact.
- Whether a permit issued by the New Hampshire Department of Environmental Services Wetlands Board is dispositive of whether the municipality’s requirements are satisfied.
Town of Merrimack v. McCray, No. 2003-484
April 21, 2004: Affirmed.
- Whether a party should be allowed to intervene after a settlement agreement is filed.
- Whether a vote by the Board to cease litigation against a Town selectman, in which the said Town selectman voted, must be voided because of a conflict of interest.
Petition of Goffstown Education Support Staff, NEA - New Hampshire, No. 2003-370 (State Retirement System)
April 21, 2004: Affirmed.
- Whether the union’s petition for writ of certiorari was untimely where it was filed more than thirty days after the board denied the union’s first motion for rehearing, but the NHRS treated the first mo tion for rehearing as a request for adjudicative proceedings without objection, and the writ was timely filed after the denial of the second motion for rehearing.
- Whether the support staff may rely upon the employer oversight provision to "buy-back" credits for services rendered before July 1, 2001, where the school district had voted in 1950 to participate in the State retirement system but the NHRS had no record of that vote, the school district elected in March 2001 to have the support staff become eligible to participate in the NHRS, and the board set July 1, 2001, as the effective date for their participation.
The Court noted that RSA 100-A:22 provides an alternative mechanism by which the support staff may receive credit for services rendered before July 1, 2001.
Town of Lyndeborough v. Boisvert Properties, LLC, No. 2003-576 (Zoning)
April 21, 2004: Reversed.
- Whether RSA 215-A (2000) & Supp. 2003) (which allows for property to be listed as an open Off Highway Recreational Vehicle (OHRV) trail with the New Hampshire Department of Resources and Economic Development) preempts the town’s site plan review process as a prerequisite to establishing an OHRV trail.
Constitutional
New Hampshire Motor Transport Assoc. v. State of New Hampshire, No. 2003-641
April 19, 2004: Remanded.
- Whether Part II, Article 6-a of the State Constitution prohibits expenditures of highway funds on some or all of the components of the Rail Project.
- Whether funds collected pursuant to Part II, Article 6-a may be properly expended by the State on public transit projects.
- Whether the New Hampshire Motor Transport Association should be awarded its attorney’s fees incurred in seeking to require the State to comply with Article 6-a.
Anderson v. Smith, No. 2003-266
April 20, 2004: Affirmed in part and vacated in part.
- Whether a verdict should be set aside where a disqualified juror entered the jury room after the case was submitted to the jury, but exited before the jury deliberations began.
- Whether the trial court erred by not instructing the jury to recommence deliberations and failing to give appropriate supplemental instructions after the disqualified juror was removed.
- Whether the defendant was denied her right to a fair and impartial jury trial where there had been minimal conversation about the case on the first day.
- Whether defendant’s due process rights were violated by the trial court’s failure to hold the evidentiary hearing to determine the extent of the disqualified juror’s contact with the jury until two months after the trial’s conclusion.
- Whether the trial court can award attorney’s fees where the defendant concedes that the jury made a finding of bad faith, but the trial court vacated the jury verdict without making a subsequent specific finding of bad faith, and then the jury verdict was reinstated.
Petition of the Governor and Executive Council, No. 2003-827
April 28, 2004: Petition granted.
- Whether RSA 490:1, as amended by Chapter 50:1, Laws 2001, is unconstitutional because the legislative branch lacks the requisite constitutional authority to prescribe the method of selection of judicial officers and impermissibly limits the chief justice’s term of office.
- Whether RSA 490:1, as amended by Chapter 50:1, Laws 2001, is unconstitutional because it encroaches upon the power of the executive branch and the independence of the judicial branch in violation of the separation of powers doctrine under Part I, Article 37 of the New Hampshire Constitution.
- Whether the chief justice position is a discrete judicial office.
Criminal
State v. Stern, No. 2003-307
April 5, 2004: Affirmed.
- Whether a blood sample taken after the police arrested the defendant, but before they obtained a search warrant, was taken in violation of Part I, Article 19 of the State Constitution, where it was late evening, making it more difficult to obtain a warrant, and blood alcohol content diminishes with the passage of time.
- Whether the trial court should suppress two blood samples obtained after the police procured a search warrant where the affidavit in support of the search warrant contained a material misrepresentation.
- Whether the trial court violated the defendant’s State constitutional right to due process by amending her sentence to correct its clerical error.
State v. Sleeper, No. 2003-254 (Constitutional)
April 16, 2004: Affirmed.
- Whether pattern indictments which fail to identify at least two specific predicate offenses underlying the pattern of sexual assault violate the defendant’s State and Federal Constitutional rights to jury unanimity, as well as the defendant’s federal due process rights.
State v. Barnes, No. 2003-039 (Evidence)
April 16, 2004: Vacated.
- Whether allowing the State to impeach the defendant at trial with testimony he gave at his plea withdrawal hearing was harmless error where the impeachment concerned issues unrelated to the State’s evidence of the defendant’s guilt and the trial court instructed the jury not to use the inconsistent statements for any purpose other than deciding whether to believe a witness at trial.
- Whether the trial court erred by denying defendant’s motion to compel the State to produce internal police dispatch records that track the times officers receive and respond to calls where those records could be used to impeach the officer.
In re Juvenile, No. 2003-248 (Jurisdiction Over the Person)
April 19, 2004: Reversed.
- Whether closure of a case is controlled exclusively by RSA 169-B:4, IV, where a court retains jurisdiction over the case pursuant to RSA 169-B:4, II.
State v. Belton, No. 2003-002 (Evidence)
April 19, 2004: Affirmed.
- Whether the DNA evidence should have been excluded where the "weak results" could have indicated the presence of DNA from another person mixed in, but there was no indication above the controls of a mixture.
- Whether the State’s failure to disclose evidence that a witness was unable to identify the defendant in a photo array should have resulted in an exclusion of all evidence concerning photographic identifications.
- Whether the trial court erred when it allowed the State to introduce statements made by the defendant where the defendant had been unlawfully detained and released twenty four hours beforehand, and the statements were made after he had asked to speak to an officer, received a Miranda warning and signed a Miranda form.
State v. Wellington, No. 2003-209
April 20, 2004: Affirmed.
- Whether the trial court erred by refusing to award the indigent defendant funds to hire an expert on child witness suggestibility to consult with defense counsel where the defendant pointed out that a few improper interview techniques may have been used, but did not demonstrate how they would impact his case.
- Whether the trial court erred by refusing to allow defendant to introduce evidence tending to demonstrate that the eight-year-old victim masturbated on prior occasions as a means of showing that the victim had the experience and ability to contrive a statutory rape charge against the defendant.
State v. L’Heureux, No. 2003-242 (Defense of Competing Harms)
April 23, 2004: Vacated and remanded.
- Whether the defense of competing harms may be used where the defendant has driven while intoxicated to the police to obtain assistance at 11:00 p.m., rather than going to other houses in the neighborhood to contact the police.
- The Court clarified the second prong of the test in State v. O’Brien, 132 N.H. 587, 590 (1989), stating that the phrase "no lawful alternative" used therein means "no reasonable lawful alternative."
State v. Brenes, No. 2003-301
April 29, 2004: Affirmed
- Whether the destruction of the tape recording and accompanying notes from trial deprived the defendant of his state and federal procedural due process rights where they were destroyed pursuant to Superior Court Administrative Rule 3-9, which allows their destruction ten years from the date on which they were recorded, and where the defendant was disadvantaged solely because he fled the jurisdiction, causing a delay of more than 10 years between conviction and sentencing.
In Re Juvenile, No. 2003-187 (RSA 641:6)
April 30, 2004: Reversed.
- Whether throwing contraband in the form of a cigarette pack onto the floor of a congested area constitutes concealment with the purpose to impair its verity or availability in a pending official investigation in violation of RSA 641:6.
State v. McKinnon-Andrews, No. 2003-234 (Motion to Suppress)
April 30, 2004: Affirmed.
- Whether the officer by asking the defendant about his car’s contents exceeded the scope of the initially valid Terry stop, turning a reasonable seizure into an unreasonable one under the State and Federal Constitutions, where: 1., The defendant appeared to be driving into a restricted area where contraband could be passed; 2., Defendant got out of his car and approached the officer’s cruiser rather than waiting to be approached; and 3., Defendant’s alleged destination was inconsistent with the direction in which he was traveling.
Employment
New England Homes, Inc., v. R.J. Guarnaccia Irrevocable Trust, No. 2003-271
April 16, 2004: Affirmed in part, reversed in part.
- Whether a person employed on a commission basis to solicit sales orders is entitled to his/her commission at the time that the order is accepted by the employer or at the time that the employer has been fully paid for the order.
- Whether the court pierced the corporate veil by awarding Guarnaccia a commission on the sale of a home owned by a trust for which the plaintiff’s president was the trustee.
- Whether the last Department of Labor hearing session represents the close of the record where the hearing officer agreed to hold open the record for the sole purpose of allowing the party to file a volume-discount schedule and the schedule was filed prior to the deadline set by the hearing officer.
- Whether the employer acted willfully and without good cause in withholding wages when its written custom was not to pay commissions until after being fully paid.
Insurance
Bennett v. ITT Hartford Group, Inc., No. 2003-286
April 19, 2004: Affirmed in part and reversed in part.
- Whether the insured could maintain a cause of action against Hartford in tort for breach of good faith and fair dealing, with damages separate and distinct from those for which Hartford may be contractually responsible to insured, where Hartford retained exclusive control over the investigation and hindered insured’s ability to gather evidence and pursue an independent claim against third party.
- Whether the court erred in denying the insured’s motion for a nonsuit without prejudice where the parties have been preparing for trial for seven years.
- Whether the court erred in denying the insured’s second motion to amend the writ where the amendment was a substantive amendment that would initiate new fact discovery and a new cause of action.
- Whether the insured’s entire case file with respect to his litigation against the third party is protected by attorney-client privilege and the work product doctrine from discovery by Hartford.
EnergyNorth Natural Gas, Inc. v. Underwriters at Lloyd’s, No. 2003-437 (Trigger of Coverage)
April 23, 2004: Remanded
- What "trigger-of-coverage" standard should be applied under New Hampshire law to determine the point at which an "accident" or "occurrence" causing "property damage" took place, within the meaning of the accident- and occurrence-based insurance policy provisions at issue, where an insured alleges that: hazardous contaminants leaked and spilled onto the site over time, before 1952, and migrated through soil and groundwater, causing continuous injury to the pertinent property, from the time the leaks and spills occurred through the periods of coverage under the policies (1958-1983), which property damage was ordered by governmental agencies to be cleaned up in approximately 1996.
Real Property
Motion Motors, Inc. v. Berwick, No. 2003-008 (Real Property)
April 20, 2004: Affirmed in part and reversed in part.
- Where the seller of real property reserved the rights to harvest and remove all standing timber on said property, and the buyer then cut trees on said property, did the buyer unlawfully invade that right pursuant to RSA 227-J:8?
- Whether a term as used in a deed is ambiguous and should be interpreted in accordance with extrinsic evidence.
- Whether the language "together with a 12-foot right-of-way" describes the twelve-foot "panhandle" conveyed or is meant to convey a new interest in land in the form of an easement over another’s property.
- Whether a letter sent stating that the parties were in litigation over rights and that the other side did not have permission or authority to exercise those rights constituted an unjust and illegal termination of rights under the agreement.
- Whether a party is harmed by a notice of termination where that party has not obtained the proper permits to exercise the rights at issue.
The Blackthorne Group, Inc. v. Pines of Newmarket, Inc., No. 2003-401 (Real Estate Broker)
April 21, 2004: Affirmed.
- Whether the New Hampshire Real Estate Practice Act precludes the plaintiff from recovering the fee under either a breach of contract or unjust enrichment/quantum meruit theory where the Plaintiff is a licensed real estate broker in New York but not in New Hampshire, the subject property is located in New Hampshire, the parties orally agreed that the fee for plaintiff’s services would be three percent of the sale price, plaintiff located a buyer to whom the defendant sold the real estate, and defendant did not pay the fee.
Meredith L. Richardson joined Main Legal Associates, P.A., in May 2001. She practices primarily civil litigation, with cases that contain issues of commercial, corporate, real estate, probate, and family law. Prior to MLA, Meredith had worked as an associate at the Law Office of George C. Malonis, P.C., and taught international law at EF International in Brighton, Mass. She is admitted to practice in Maine, New Hampshire, Massachusetts, and in the U.S. District Court for the District of Massachusetts. Richardson earned a J.D. from Hastings College of Law.
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