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Bar News - March 17, 2006 Supreme Court At-a-Glance – February 2006 By: By William J. Amann The State of New Hampshire v. William Mussey Merrimack No. 2004-784 Affirmed The Defendant, William Mussey, was convicted of second-degree assault. RSA 631:2, I(d)(1996). ISSUE: Whether the prosecutor’s argument concerning collateral consequences to the police officers’ careers constituted reversible error. The Defendant argues that the statement was improper because it concerned facts not in evidence and caused sufficient prejudice to require a new trial. The State makes three arguments in response: (1) the prosecutor’s statement was proper in light of cases that have allowed similar statements; (2) defense counsel’s allegation that the three officers had lied to the jury justified the prosecutor’s statement; and (3) any error was harmless. HOLDING: Although the prosecutor’s statement was found to be improper, the overwhelming evidence in the case supported the conviction and therefore, any error was harmless. In the Matter of Lucille J. Rossino and Joseph A. Rossino Hillsborough-Southern Judicial District No. 2004-895 Reversed in part, Vacated in part and Remanded The Respondent, Joseph A. Rossino, appeals an order of the Superior Court approving a decree of divorce. ISSUE: The Respondent argues that the Court erred in applying Noddin v. Noddin, 123 N.H. 73 (1983), and in denying joint legal custody of his minor children. HOLDING: The trial Court allowance of the Petitioner’s request to impute certain gross monthly income to the Respondent was error. Noddin applied to a post-divorce case in which a child support order had been made. In this case, the parties were still married when the Respondent involuntarily resigned from his employment and there was no existing child support order. Noddin does not apply where the reduced financial condition occasioned by a party’s alleged wrongdoing occurred before the filing for divorce. Therefore, the Superior Court erred in imputing income to the Respondent based upon that case, and we reverse that ruling. RSA 458-C:2, IV(a) (2004) provides: “The Court, in its discretion, may consider as gross income the difference between the amount a parent is earning and the amount a parent has earned in cases where the parent voluntarily becomes unemployed or underemployed, unless the parent is physically or mentally incapacitated.” We remand to the Superior Court for a determination as to whether RSA 458-C:2, IV(a) (2004) applies and, if so, whether under the terms of the statute, the Respondent voluntarily became “unemployed or underemployed” for purposes of calculating child support. The Respondent next argues that the Superior Court erred in awarding sole legal custody of the children to the Petitioner. Except in cases involving abuse, “there shall be a presumption, affecting the burden of proof, that joint legal custody is in the best interest of minor children.” RSA 458:17, II (2004). The record supports that during the divorce process, the Petitioner brought no less than four additional and frivolous legal actions against the Respondent. The Court’s determination on the award of legal custody apparently did not take into account the actions of the Petitioner and thus was legally erroneous. Fastrack Crushing Services, Inc. v. Abatement International/Advatex Associates, Inc. & a. Rockingham No. 2005-132 Reversed The Defendants, Abatement International/Advatex Associates, Inc. (Advatex), and American Guarantee & Liability Insurance Co. (AGLIC), appeal an order of the Superior Court denying their motion to dismiss the claim of the Plaintiff, Fastrack Crushing Services, Inc. (Fastrack), and an order of the Superior Court in favor of Fastrack on the parties’ cross-motions for summary judgment. Fastrack cross-appeals an order from the Superior Court denying its motion to reconsider on the issue of attorney’s fees and late payment charges. The trial Court’s ruling on the Defendants’ motion to dismiss was reversed and therefore the Court did not address the motions for summary judgment or attorney’s fees and late payment charges. ISSUE: Although this comes to us as an appeal from a motion to dismiss, we must interpret RSA 447 §§ 17 and 18 to determine whether the ninety-day and one-year time periods included in those sections constitute preconditions to filing a claim on a statutory bond. The Plaintiff argued that RSA 508:10 allows its second-suit to go forward. HOLDING: Giving notice within the ninety day time period as required by RSA 447:17 is a condition precedent to any claim against the bond. Accordingly, except where a Petitioner files its notice before a job’s completion and acceptance, no cause of action against a bond’s principal or surety will arise until the claimant complies with the notice requirements of that section. Because the Plaintiff did not meet the ninety-day requirement of RSA 447:17, it failed to assert its rights and thus lost its chance to make claims upon the bond. Having not done so, it is not the diligent suitor RSA 508:10 was intended to protect, and the trial Court erred by not dismissing Fastrack’s claim. A second action will be precluded where the amended complaint fails to cure the deficiency. See ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993). Appeal of the City of Manchester (New Hampshire Public Employee Labor Relations Board) Public Employee Labor Relations Board No. 2005-264 Reversed The Petitioner, the City of Manchester (City), appeals a New Hampshire Public Employee Labor Relations Board (PELRB) ruling that the City committed unfair labor practices (ULPs) in violation of RSA 273-A:5, I(a) and (g) (1999). In response to a citizen complaint made against a city police officer, the Department initiated an internal affairs investigation. As part of that IA investigation, the officer was interviewed on two occasions. Subsequently, the Department issued a letter of disciplinary intent charging the officer with two counts of untruthfulness arising from the interviews, one count of conduct unbecoming an officer, and one count of unlawful conduct. After a disciplinary hearing the officer’s employment was terminated. The officer filed a ULP complaint with the PELRB against the City, alleging that the Department violated RSA 273-A:5, I (a) & (g) by obstructing or interfering with his Union representation during the investigative interviews. The officer also filed a ULP complaint against the Union. The PELRB conducted a hearing at which it considered the City’s motion to dismiss and the officer’s ULP complaints against both the City and the Union. Having concluded that it had jurisdiction to consider the ULP complaint, the hearing officer determined that the City violated the officer’s Weingarten rights during both investigative interviews, and that the Union violated its duty of fair representation (the National Labor Relations Act accords employees the right to union representation during an investigatory interview that the employee reasonably believes might result in disciplinary action). See NLRB v. Weingarten Inc., 420 U.S. 251(1975). ISSUE: The City asserts that the decision was: (1) unlawful, unjust, and unreasonable; and (2) based upon factual misrepresentations, and/or omissions. On appeal, the City first argues that the PELRB lacked jurisdiction to consider the ULP complaint because the officer had already initiated a grievance encompassing the same claims that was subject to final and binding arbitration under the CBA. While the PELRB has primary jurisdiction of all ULP claims alleging violations of RSA 273-A:5, see RSA 273-A:6, I, it does not generally have jurisdiction to interpret the CBA when the CBA provides for final binding arbitration. Appeal of State of N.H., 147 N.H. 106, 108 (2001). Absent specific language to the contrary in the CBA, the PELRB is empowered to determine as a threshold matter whether a specific dispute falls within the scope of the CBA. Appeal of Police Comm’n of City of Rochester, 149 N.H. at 533. HOLDING: We conclude as a matter of law that the PELRB erred by determining that the officer’s ULP complaint in this case was not arbitrable and by exercising jurisdiction over the ULP complaint while the just cause grievance was proceeding to arbitration. In the Matter of B. T. Hillsborough County Probate Court No. 2004-570 Reversed The Respondent, B.T., appeals an order of the Hillsborough County Probate Court ordering her involuntary admission to a hospital for purposes of conditional discharge pursuant to RSA chapter 135-C (2005). ISSUE: B.T. appeals the Probate Court’s order, arguing that the Petitioner presented insufficient evidence at the hearing to support an order of involuntary commitment for the purpose of conditional discharge pursuant to RSA 135-C:34 and RSA 135-C:45. The Petitioner contends that she proved, by clear and convincing evidence, that B.T. posed a danger to herself or others and therefore met the standard of proof under RSA 135-C:34. She also argues that she presented sufficient evidence for an extension of B.T.’s conditional discharge under RSA 135-C:45, III, which requires a lower standard of proof than an initial involuntary commitment. HOLDING: Since B.T.’s conditional discharge had expired at the time of the hearing, the Probate Court could not have applied RSA 135-C:45, III to renew the prior order for involuntary admission and conditional discharge. The evidence of agitation, delusion, and paranoia that B.T. experiences when off her medication may support a finding that B.T. suffers from a mental illness; however, such symptoms do not make her “dangerous” under RSA 135-C:34 to herself or to anyone else. These symptoms do not satisfy the specific acts or actions required to demonstrate a threat, a likelihood, an attempt, or an actual infliction of “serious bodily injury” on herself or on another. In re Fasi a/k/a Cass, 132 N.H at 485; RSA 135-C:36, I(b). “It is the policy of this state that mental illness in and of itself is insufficient to involuntarily admit any person into the mental health services system.” RSA 135-C:1, III. We may not order an involuntary admission based solely on the existence of a mental illness. RSA 135-C:34 requires clear and convincing proof of specific acts demonstrating actual or likely serious bodily injury. The State of New Hampshire v. Karl Matey Hillsborough-Southern Judicial District No. 2005-071 Affirmed in part, Vacated in part and Remanded The Defendant, Karl Matey, appeals a ruling of the Superior Court finding him chargeable on multiple probation violations. ISSUE: Whether the trial Court erred in extending the original term of probation and by admitting evidence of a statement allegedly obtained in violation of his right to counsel. Whether, the probation officer’s interrogation of the Defendant pertained to the “same offense” to which his Sixth Amendment right to counsel had already attached. HOLDING: To the extent that the trial Court sentenced the Defendant to a term of probation exceeding five years, that sentence was error, and the error was plainly evident from the plain language of RSA 651:2, V(a). The Defendant’s right to counsel was not violated, and his statements were admissible at his probation revocation proceeding. For double jeopardy purposes, the two violations cannot be the “same offense,” as they do not even meet the threshold requirement that the violations arise out of the “same act or transaction.” Because the two violations are not the “same offense” for double jeopardy purposes, they are not the “same offense” for right to counsel purposes. See Texas v. Cobb, 532 U.S. 162 (2001). The State of New Hampshire v. Bruce BlomquistCarroll No. 2004-045 Affirmed The Defendant, Bruce Blomquist, appeals his convictions after a jury trial in the Superior Court for attempted murder of George Frechette, see RSA 629:1 (Supp. 2005); RSA 630:1-a (1996); first-degree assault, see RSA 631:1 (1996); and second-degree assault, see RSA 631:2 (1996), of Jolene Frechette; and burglary, see RSA 635:1 (1996). The Defendant urges us to hold that he was entitled to a lesser-included offense instruction because first-degree assault is the “same offense” as attempted murder for purposes of double jeopardy. ISSUE: Whether the trial Court should have instructed the jury on the lesser-included offense of first degree assault on the charge of attempted murder of George Frechette. First, the lesser offense must be embraced within the legal definition of the greater offense. This requires a comparison of the statutory elements of the offenses in question without reference to the evidence adduced at trial. Second, the evidence adduced at trial must provide a rational basis for a finding of guilt on the lesser offense rather than the greater offense. See State v. Watkins, 148 N.H. 760, 765 (2002). The Defendant also argued that because he had the burden of proof on the issue of insanity, he was entitled to make his closing argument after the State. HOLDING: We decline the Defendant’s invitation to inject a double jeopardy analysis into the lesser-included offense analysis. To do so would create uncertainty in an area of law that is well-settled and straight-forward. The State has the burden to prove guilt before the insanity defense becomes applicable. The Defendant had no right to close even though he bore the burden of proof with respect to his insanity defense. See State v. Baker, 120 N.H. 773, 778 (1980). Absent an unsustainable exercise of discretion, a criminal Defendant in a non-bifurcated trial has no right to present the last closing argument even if he bears the burden of proof with respect to the defense of insanity. See State v. Sundstrom, 131 N.H. 203 (1988); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard). Thus, here, where the Defendant waived his right to a bifurcated trial, he had no right to present the last closing argument on the issue of insanity. In the Matter of Sonia Ramadan and Samer Ramadan Brentwood Family Division No. 2004-727 Affrirmed The Respondent, Samer Ramadan, appeals an order of the Brentwood Family Division adopting the proposed divorce decree and uniform support order of the Petitioner, Sonia Ramadan. The Respondent moved to dismiss the petition for divorce in New Hampshire, asserting that the trial Court lacked jurisdiction over the divorce in light of a prior Lebanese divorce decree issued by a religious magistrate in the country of Lebanon in 2003. The trial Court, found that no valid judicial process had been instituted by [the] Respondent in Lebanon prior to the date the Petitioner filed her Petition for Divorce, denied the Respondent’s motion to dismiss and entered a temporary decree awarding the Petitioner sole legal custody and primary physical custody of the parties’ children, monthly child support and alimony, and certain personal and real property. The Respondent returned to Lebanon in 2004 and, through his attorney, informed the trial Court of his intent to ignore its orders because he claimed lack of subject matter jurisdiction. The Respondent did not appear for the final hearing, and the trial Court entered a divorce decree approving and incorporating the Petitioner’s proposed decree and uniform support order without amendment. ISSUE: The Respondent appealed, principally, on the following grounds: (1) that the trial Court’s refusal to dismiss the divorce petition for lack of subject matter jurisdiction was error; (2) that principles of comity required dismissal of the divorce petition; (3) that the trial Court’s refusal to consider additional documentary evidence of the Lebanese divorce decree was error; (4) that the trial Court erred by adopting the Petitioner’s proposed divorce decree. The Petitioner claims that the Respondent continues to refuse to abide by the trial Court’s temporary order and urges this Court to dismiss his appeal. HOLDING: Jurisdiction over parties to a divorce action in New Hampshire “exists . . .where both parties were domiciled in the state when the action was commenced.” RSA 458:5, I (2004). Jurisdiction over the cause of a divorce action “exists when it wholly arose or accrued while the Plaintiff was domiciled in the state.” RSA 458:6 (2004); See Woodruff v. Woodruff, 114 N.H. 365, 366-67 (1974). A review of the record confirms that the parties were domiciled in New Hampshire when the divorce action was commenced and had been so for at least three years. The trial Court properly exercised personal jurisdiction over the parties and subject matter jurisdiction over the cause for divorce. Cf. Vazifdar v. Vazifdar, 130 N.H. 694, 696 (1988). We have recognized foreign divorce decrees as a matter of comity. Comity, however, is a discretionary doctrine that will not be applied if it violates a strong public policy of the forum state, or if it leaves the Court in a position where it is unable to render complete justice. Vazifdar, 130 N.H. at 697. Therefore, even if RSA 459:1 did not settle this issue, the trial Court did not engage in an unsustainable exercise of discretion by declining to defer to the jurisdiction of a Lebanese Court as a matter of comity. Because the validity of the Lebanese divorce decree proffered by the Respondent is irrelevant in light of RSA 459:1, we conclude that the trial Court did not err by refusing to consider additional evidence on that issue. A Defendant in a divorce proceeding cannot argue that the disposition of marital property is unequal when the Defendant has effectively prevented the trial Court from being able to determine whether the disposition was in fact equal or not. See Bursey v. Bursey, 145 N.H. 283, 285-86 (2000). Blagbrough Family Realty Trust v. Town of WiltonHillsborough-Southern Judicial District No. 2005-014 Affirmed The Plaintiff, the Blagbrough Family Realty Trust, appeals a decision of the Superior Court that the Defendant, the Town of Wilton (town), was not precluded by State law from amending its zoning ordinance. In 2002, the town’s planning board approved a two-lot subdivision of property owned by a third-party that abutted the Plaintiff’s property. The subdivision provided for a shared driveway with two culverts. At the time of the approval, the town’s zoning ordinance provided that no structure could be located less than 200 feet from open water and perennial streams or less than 150 feet from intermittent streams, the 100 year floodplain or any wetland. A structure was defined as “[a]ny construction, erection, assemblage or other combination of materials upon the land which is made in such a manner as to imply that it will remain in position indefinitely or which in fact remains on the land for a period of time in excess of thirty (30) days.” The Plaintiff appealed to the town’s zoning board of adjustment arguing that the approval was illegal because it permitted the installation of structures, i.e., the culverts, in the driveway within the protected setback from a wetland. The ZBA determined that pursuant to the “spirit and intent of the Wilton Zoning Ordinance, neither a driveway nor a culvert is considered a structure” and upheld the planning board’s approval of the subdivision. ISSUE: Whether the trial Court erred when it: (1) ruled that the driveway, culverts and outfall pipes were not “structures” within the meaning of the town’s ordinance and that the amendments to the ordinance were not preempted by State law; and (2) declined to consider the argument that the driveway, culverts and outfall pipes were initially constructed pursuant to a logging permit that forbade retention of the roads and culverts in the wetlands setback. HOLDING: (1) The Superior Court found no conflict between the two definitions of “structure,” concluding that the town’s ordinance and the State statute may be applied without conflict because they regulate two different areas. We find no error in the Superior Court’s ruling. Assuming, without deciding, that the State has preempted local regulation in wetlands, municipalities may adopt local ordinances to further wetland protection in areas outside the State’s regulation. We disagree with the Plaintiff that the State has defined the term “adjacent” in regards to wetlands to include the setback areas covered by the town’s zoning ordinance. Local regulation within the setback area does not conflict with the State’s jurisdiction over wetlands or interfere with the State’s purpose in regulating wetlands. (2) “[t]he local board should have the first opportunity to pass upon any alleged errors in its decisions so that the Court may have the benefit of the board’s judgment in hearing the appeal.” Dziama v. City of Portsmouth, 140 N.H. 542 (1995). Because the Plaintiff failed to properly raise this issue, the Superior Court did not err in refusing to consider it. Claire Berthiaume & a. v. John B McCormack, Hillsborough-Southern Judicial District No. 2005-191 Affirmed The Petitioners, members of the former St. Francis Xavier parish (St. Francis Xavier) of the Roman Catholic Church in Nashua, appeal the order of the Superior Court dismissing their claims against the Respondent, John B. McCormack (Bishop McCormack), in his capacity as the Roman Catholic Bishop of Manchester, a corporation sole (RCBM). First, the Petitioners contended that the laws that created the RCBM, established a statutory trust that obligated the RCBM to hold St. Francis Xavier property in trust for the use and benefit of its parishioners. Second, they argued that the restrictions in the 1885 deed were in full force and effect and prohibited the RCBM from conveying the church for a non-religious use. Third, they alleged that by paying for the construction of the parish church and by the contributions made by the St. Francis Xavier parishioners to the parish and to the Diocese of Manchester, the Diocese had a confidential and fiduciary relationship with the St. Francis Xavier parishioners. They further argued that by closing the St. Francis Xavier church and selling the land and buildings, the Diocese breached its fiduciary duty and would be unjustly enriched. The RCBM moved to dismiss, arguing that the enforcement of the 1885 deed restrictions was within the exclusive jurisdiction of the Probate Court, and that in any event the Petitioners did not have standing to enforce the deed’s provisions. The RCBM further argued that the First Amendment to the Federal Constitution prohibited Courts from examining church doctrines and policies, and that the Superior Court could not resolve this litigation without violating that Amendment because the dispute involved the reorganization of parishes and redistribution of their property. Finally, the RCBM argued that the Petitioners had not alleged sufficient facts to support a claim for a constructive trust. The Superior Court granted the motion to dismiss. ISSUE: Whether the Superior Court could resolve the property dispute brought about by Bishop McCormack’s suppression of the parishes without entangling itself in matters of doctrine, discipline, faith, or internal organization of the Roman Catholic Church. See Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). Whether res judicata bars the Petitioners’ claims that the restrictions of the 1885 deed should be construed to prohibit the proposed sale. HOLDING: Since the United States Supreme Court has left it to the States to “adopt any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters,” Jones, 443 U.S. at 595 (1979), we will first consider only secular documents such as trusts, deeds, and statutes. Only if these documents leave it unclear which party should prevail will we consider religious documents, such as church constitutions and by-laws, even when such documents contain provisions governing the use or disposal of church property. The Court elaborated on its application of the “neutral principles test” to the facts of the case. See Reardon v. Lemoyne, 122 N.H. 1042 (1982). The Court held that the 1885 deed conveyed the property to the RCBM, and not to St. Francis Xavier and that the proposed sale of the land and buildings in this case did not constitute a violation of the RCBM’s duties under either chapter 232 or article 8 of RSA chapter 564-B. Given that the parties and the standing issue were identical (in Probate Court and Superior Court), and that the Probate Court proceeding had reached finality on the issue of the Petitioners’ standing, the Petitioners were precluded from raising claims regarding the enforcement of the deed restrictions in the Superior Court. |
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