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Bar News - January 7, 2005 Supreme Court at a Glance ~ November 2004 By: Kenneth G. Bouchard Appeal from the State Board of Education Appeal of Hopkinton School District, No. 2003-667 Facts: School district failed to renew contract of the principal of one of the schools in the district. State Board of Education found that there was bias or the appearance of bias in the school board’s decision. Issue: Whether the board-appointed hearing officer’s finding of unfairness constituted bias or appearance of bias, and which standard would apply. Holding: The standard requires a showing of actual bias. Administrative Assessment of Fees and Penalties Rymes Heating Oils, Inc. v. Commissioner, New Hampshire Department of Safety, No.2003-519 Facts: Rymes, a distributor of motor fuels and heating oil, purchased clear kerosene to blend with both diesel, motor fuel and heating oil to prevent gelling during the winter months. Rymes did not pay any road toll fees on the clear kerosene it purportedly blended with heating oil. There is a tax on fuel intended to be used by motor vehicles, but no tax on the same fuel if used for other purposes such as heating. Those fuels which are not intended to be used for driving motor vehicles should be dyed before withdrawal from the wholesale terminal. Road toll fees are not paid on dyed fuel. Issue: Whether tax has to be paid on special fuels not dyed at the terminal but nonetheless used for non-vehicle propulsion purposes. Holding: In order to properly effectuate the purpose of the road toll statute, the distributor must make the decision at the time of the purchase of the fuel, otherwise the burden would be put on the State to uncover any non-highway use for the undyed fuel sold by the distributor. The Court also noted that if any actual non-dyed product was not used on a highway, the rules provide for the end user or the distributor to seek a refund. Powers of Selectmen Peter Franklin v. Town of Newport, No. 2004-211 Facts: At a Newport town meeting, an article was approved instructing the Board of Selectmen to appoint the petitioner of the article to the regional committee in the Sullivan County Regional Refuse Disposal District. However, the Board of Selectmen appointed the Town Manager, not the petitioner, to this committee. Issue: The statute that set up the district provided that the Board of Selectmen Ashall@ appoint the regional representative. Therefore, the Court held that the appointment was proper. A second issue was whether the town manager could serve in that function in addition to serving as the regional representative under RSA 37:9. That statute restricts the other jobs a town manager can hold. The Court interpreted the statute as to allow the town manager to hold another public office outside of the town, which was the case here. In addition, the Court points out that the statute was amended to allow the present situation. Equity and the Right-to-Know Law, RSA Chapter 91-A Professional Firefighters of New Hampshire v. HealthTrust, Inc., No. 2004-017 Facts: HealthTrust is a non-profit New Hampshire corporation formed by an association of 322 governmental entities to provide general health insurance benefits for public employees under a pooled risk management program. The plaintiff sought the disclosure of meeting minutes and documents from HealthTrust under the Right-to-Know Law, including specifically the contract between HealthTrust and Anthem Blue Cross and Blue Shield. HealthTrust refused to provide the information, claiming that it is not a public entity subject to the Right-to-Know Law. Issue: Is an association of governmental entities a public body under RSA Chapter 91-A? Holding: HealthTrust is made up of governmental entities and therefore should be considered a public body subject to the Right-to-Know Law. However, the Court sided with the defendant on the issue of whether the entire information must be turned over or whether there was potentially privileged information which should be reviewed in camera. The case is most relevant on the issue of the use of a Vaughn index. Vaughn v. Rosen, 484 F.2d 820 (1973) is a federal case that established that when an in camera review is done, the court can require the party supplying the documents to provide an index including a general description of each document withheld and justification for its non-disclosure. That procedure was adopted in the New Hampshire case of Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 546 (1997). In the instant case, the Court again sanctioned the use of a Vaughn index so that the in camera review would allow the trial court to more easily determine what should be disclosed and what should be protected. Criminal - What Constitutes a Common Plan State v. Jeremy McIntyre, No. 2003-395 Facts: The defendant inappropriately touched a 12 year-old girl ultimately culminating in sexual acts. Issue: Whether the independent acts fell within the common plan rule for joinder so as to allow one trial on the charges of felonious sexual assault and three aggravated felonious sexual assaults. Holding: The acts were mutually dependent because the final assaults hinged upon the success of the earlier incidences. Therefore, joinder of the charges at trial was appropriate. Criminal - Accomplice to Negligent Cruelty to Animals State of New Hampshire v. Virginia Anthony, No. 2003-728 Facts: The defendant was indicted for Class B felony charge of accomplice to cruelty to animals. She was accused of having helped her husband in binding a colt's four legs together and leaving it on the ground. Issue: Whether a person could be an accomplice to negligent cruelty to animals. Holding: The Court concluded that a person could be aware of her conduct but not aware of the serious risk presented to the animal, and therefore a crime of accomplice to negligent cruelty to animals exists under New Hampshire. Real Estate Lease - Obligations of Lessee RAL Automotive Group, Inc. v. Jay C. Edwards, No. 2003-771 Facts: Edwards leased property he owned to RAL for operation of a car dealership. RAL defaulted under the terms of the lease and the parties entered into a settlement agreement wherein RAL provided a certificate of deposit in excess of $132,000 as security for all payments due. It also provided that if Toyota approved a new dealer, RAL would purchase an irrevocable letter of credit from a New Hampshire bank in the same face amount to serve as a security deposit. The owner of the new dealership refused to personally guarantee performance under the lease, so Edwards refused to go along with the assignment of the lease (Edwards evicted the tenant and thereby was collecting no rent). RAL sought equitable relief. Issue: Was the lessee still liable under the lease without providing the irrevocable letter of credit. Holding: The Court relied on a 1929 case that held that where there was a contract to pay the rent, the fact that the tenant never occupied the premises or in any manner took possession of it would not relieve him from the liability, and he would be held to pay the rent for the full term. Thus, the fact that Edwards reacquired possession of the property upon evicting the new dealer would not necessarily relieve RAL from its ability to pay rent under the lease. The Court remanded for a determination of whether the lease was ongoing and could be enforced, or whether it was breached or terminated, making an action for damages the more appropriate vehicle for relief. Authority of Town to Regulate Dumping of Sludge Nathaniel S. Thayer v. Town of Tilton, No. 2003-421 Facts: Thayer owned a piece of land and made arrangements with a company to stockpile and spread municipal sewage waste biosolids (sludge) on his property. In 1997, the company filed a permit with the NHDES indicating it would dump and spread Class B sludge. DES notified the company that a permit was not needed, but that it would have to comply with regulations, one of which was a public informational hearing. The town notified the company that the proposed project would require approval by the town under its zoning ordinance, site plan regulations and under RSA 155-E:5. The selectmen adopted an ordinance regulating use of the sludge in the town and limiting it to Class A sludge. At the next town meeting, the town ratified the language of the ordinance. Issue: Was the property owner guilty of laches and did the town have the authority to pass stricter requirements than the federal government or the state of New Hampshire? Holding: Citing a statute, RSA 31:129, the Court found that laches would not apply when the issue was the invalidity of municipal legislation. In terms of preemption, the Court held that the town ordinance was not preempted by either state or federal law because both entities specifically allow local ordinances or statutes which were more strict than those provided by the federal government or the state. In addition, despite the fact that the plaintiff claimed that he bought the property based on the ordinance that was in effect at the time of purchase, the Court held that he did not have any vested interest due to incurring substantial liabilities as a result of purchasing the property. This month’s "Supreme Court at a Glance" was edited by Kenneth G. Bouchard, who practices with Bouchard & Kleinman, P.A. (soon to be Bouchard, Kleinman & Wright, P.A.). His practice focuses primarily on representing plaintiffs and defendants in almost any kind of civil litigation. |
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