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Bar News - December 14, 2001 NH Supreme Court Opinion Summaries DRIVER PRIVACY ACT – RECORDS DISCLOSURE Peter DeVere v. Attorney General Duggan, J. The State appeals from a superior court order interpreting RSA 260:14, III (Supp. 2000) of the Driver Privacy Act to require disclosure of certain motor vehicle records to the plaintiff. The supreme court reversed. The plaintiff, a principal organizer of NH DWI Volunteers and an advocate of drunk driving legislation, submitted a request to the New Hampshire Division of Motor Vehicles (division) seeking the names, home towns and license plate numbers for all one, two, three and four digit plates issued by the division from Nov. 1 1996 through Dec. 15, 1997. The division denied his request as being inconsistent with the requirements of RSA 260:14. The plaintiff then filed a petition in superior court seeking disclosure of the information under RSA 260:14, III. In his petition, the plaintiff stated that he was seeking release of the information to cross-reference the names of persons who had been issued low-digit plates with the names of persons who had contributed to the Governor’s campaign. The plaintiff later amended his petition to seek relief under RSA 260:14, V (a)(2), V (a)(4) and VIII. At the hearing, the plaintiff testified that he needed the motor vehicle records in order to provided testimony regarding his findings to the senate transportation committee, which was considering legislation related to the issuance of low-digit license plates. The superior court granted the petition. The state filed a motion for reconsideration, arguing that RSA 260:14, III was intended to apply solely to government officials. The court denied the motion. The supreme court rejected the argument that section III of the statute as allows disclosure to a private party "pursuant to a court order" whenever the private party asserts such disclosure is related to a government function. Here, the plaintiff sought the information to provide testimony to the senate transportation committee. In providing such testimony, the plaintiff was not acting as a governmental official, but as a private citizen. Viewing the statute as a whole, the supreme court concluded that the legislature intended that private parties must satisfy the requirements of section V before obtaining access to motor vehicle records. LYNN, J., superior court justice, specially assigned under RSA 490:3, dissenting: I believe the majority has construed the protective purposes of the New Hampshire Driver Privacy Act (DPA) more broadly than the general court intended, and that this error has led the majority to impose a judicial gloss on section III of the DPA that is at odds with both the plain language of the statute and its legislative history. RULES OF PROFESSIONAL CONDUCT – CONFLICT OF INTEREST Peter Franklin v. Denise Callum, Interim Project Director, NH/VT Solid Waste Project NADEAU, J. The plaintiff appeals a superior court order denying his motion to disqualify attorneys representing the defendants and its interim director and granting the Project’s motion to disqualify the plaintiff’s attorney. The supreme court reversed in part and affirmed in part. Pursuant to the Right-to-Know Law, the plaintiff sought examination of all of the legal bills the Project incurred in 1998. The Project consists of two solid waste management districts from New Hampshire and Vermont. The plaintiff is a representative from the Town of Newport to the New Hampshire district’s governing board. The representatives to the New Hampshire and Vermont Districts’ governing boards are also members of the Joint Meeting, a body that administers the Project through an executive committee. In response to the plaintiff’s request, the Project produced all of its legal bills with details regarding the type of legal work, who did the work, how much time was spent, the date the work was done and the charge for the legal work. However, the Project redacted what it believed to be material subject to the attorney-client privilege. Upon review of the legal bills, the trial court ruled that "only confidential material was redacted," and that the plaintiff was not a client of the Project. Therefore, he was not entitled to "unfettered access to the legal bills" of the Project. After seeking legal representation from Adele Fulton of the law firm of Gardner & Fulton, the plaintiff appealed to this court. Soon thereafter, the defendants through their attorney, Bryan Gould of the law firm of Brown, Olson & Wilson (BOW), moved to disqualify Fulton from representing the Project. While this dispute over access to legal bills was ongoing, the New Hampshire and Vermont Districts voted upon a resolution, advanced by Gould for the Project, that limited the district’s access to the Project’s legal bills. The Vermont District adopted the resolution, but the New Hampshire District rejected it, insisting that its representatives be allowed unlimited access. The supreme court agreed with the plaintiff’s argument that by representing the Project and its director, Gould and BOW compromised their duty of loyalty to the New Hampshire District because the district never consented and Gould’s representation of the Project is directly adverse to the interests of the New Hampshire Project. The supreme court rejected the plaintiff’s argument that Gardner & Fulton had no conflict of interest in representing him. The supreme court concluded that Fulton’s partner is disqualified under Rules 1.9 and 1.10 because, based upon the record, he drafted agreements forming the Project and her representation of the plaintiff may require her to interpret his work. CRIMINAL – EVIDENCE – PHYSICIAN-PATIENT PRIVILEGE The State of New Hampshire v. Dale Nickerson DUGGAN, J. The defendant appeals a decision denying his motion to suppress blood test results. The supreme court affirmed. The defendant was the driver of a vehicle involved in a car accident. He was taken to a hospital where medical personnel performed a routine blood test. A state trooper then questioned the defendant about the cause of the accident and whether he had been drinking. After advising the defendant that he was being arrested for driving while intoxicated (DWI), the trooper informed him of his administrative license suspension rights and asked him to submit to a blood test. The defendant refused the test. Subsequently, the trooper asked the defendant’s treating physician for a printout of the blood test results the hospital had performed. The physician provided the trooper with a printout, which was later introduced at trial. The defendant was convicted of DWI. The defendant contends that the physician-patient privilege, as codified in RSA 329:26 (Supp. 2000), precludes the State from obtaining and using the hospital blood test results without the patient’s consent. The supreme court rejected the defendant’s argument that the exception was intended to apply only when a person willingly submits to a law enforcement officer’s request for a blood test because had that been the legislature’s intent, they could easily have drafted the statute to do so. The defendant next argues that RSA 265:92 (2000) precludes the State from obtaining and using the test results which the defendant’s physician provided. The supreme court concluded under RSA 329:26 that the State properly obtained and used the defendant’s blood test as evidence because nothing in RSA 265:92 prevents a law enforcement officer from either obtaining the results of a blood test that was not administered at an officer’s direction or from informing the DMV of the defendant’s refusal to be tested. The de fendant conceded that the blood test results introduced at trial were not obtained at the request of the State trooper. ADMINISTRATIVE PROCEDURE ACT - RECLASSIFICATION Petition of Support Enforcement Officers I and II and Petition of Interstate Case Technicians (New Hampshire Personnel Appeals Board) Brock, C.J. In these petitions for writs of certiorari, both groups challenge the director of the division of personnel’s (director) denial of upgrades in their respective job classifications. They contend that reclassification appeals are governed by the provisions of RSA 541-A:31-:36 (1997) and that the reclassification proceedings failed to comply with those provisions. The supreme court vacated and remanded. The petitioners submitted a letter to the director requesting that their positions be reclassified because their jobs had increased in complexity and responsibility. In support of their request, the petitioners identified a number of classification factors and argued that the point values for many of the categories should be increased. The director denied their request. When the director reaffirmed her position in response to a motion for reconsideration, the petitioners appealed to the board. The board denied the petitioner’s requests for evidentiary hearings and scheduled the appeals for hearing at which each side would be given thirty minutes to present offers of proof and legal argument. The petitioners objected, arguing that a number of material factual issues were in dispute. Over the petitioners’ objection, the board went forward with the offer of proof proceedings. The board issued a written decision denying the petitioner’s upgrade requests. The supreme court concluded that the petitioners were "legally entitled to a hearing," and that their cases were "contested cases" within the meaning of the Administrative Procedure Act. The supreme court also concluded that because the board’s decision in this case affected the private rights of individuals employed as SEO’s and ICT’s, an adjudicative proceeding was required. The supreme court rejected the petitioners argument that testimonial evidence was necessary to prove to the board that the petitioners had duties and responsibilities different from, or in addition to, those described by the director. The supreme court concluded that the board had failed to provide the court with an adequate basis upon which to review its decision and had therefore failed to satisfy the requirements of RSA 541-A:35. |
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