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Bar News - March 8, 2002 NH Supreme Court Summaries PROTEST PETITION - ZONING ORDINANCE Gerald Handley v. Town of Hooksett BRODERICK, J. The plaintiff appeals the trial court’s order holding that RSA 675:5 (1996) does not require towns to determine the validity of a protest petition prior to the vote on a warrant article and that the defendant had not impermissibly combined multiple amendments to its zoning ordinance into a single ballot question. The supreme court affirmed. The defendant posted the warrant for its annual meeting. The plaintiff filed a protest petition to one of the questions. In accordance with RSA 675:5, the town clerk posted a notice of the protest petition and the moderator announced the protest petition. The validity of the protest petition was not determined prior to voting; however, it was later determined to be invalid and the ballot question passed by a simple majority vote. The petitioner claims that the validity of the protest petition should have been established prior to voting and that six of the amendments should have been separate ballot questions. The trial court held that the town’s decision to postpone examination of the petition was reasonable and that the plaintiff’s challenge to the format of the amendments did not cure his invalid protest petition. The supreme court held that the statute does not require that the validity of a protest petition be determined prior to voting. As a result, the plaintiff’s contention that the town council lacked jurisdiction to determine the validity of the protest petition was found to lack merit. With respect to the plaintiff’s challenge to the format of the amendments, the supreme court held that a proposed amendment that includes changes to multiple sections of an ordinance is proper so long as the sections sought to be changed are reasonably germane to the subject of the amendment. The court found that the amendments were interrelated and that the trial court reached the correct result. DISABILITY PENSION RETIREMENT BENEFITS Appeal of Marion Anderson DUGGAN, J. The petitioner appeals the denial by the Board of Trustees of the City of Manchester Employees’ Contributory Retirement System (board) of her petition for disability pension retirement benefits. The supreme court reversed and remanded. The petitioner was employed by the city and suffered a work-related injury. She was eligible for workers’ compensation benefits, but was laid off as part of a department-wide layoff. She later received a determination by the Social Security Administration that she was entitled to disability benefits. The petitioner then applied for disability pension benefits from the city and was denied because she had not applied within 60 days of her termination. The supreme court found that the petitioner’s disability did not become permanent until more than 60 days after termination of her employment and therefore the 60 day time limit imposed by the administrative rule was arbitrary and unreasonable. The supreme court further held that 60 day time limit effectively denies benefits to employees who would otherwise be eligible for disability pension retirement benefits under the statute and therefore, as applied in this case, is inconsistent with Laws 1973, 218:7, IV. The court noted that the 60 day limit may be reasonable in some cases, but is not reasonable when applied to employees who are not deemed to be permanently disabled until after termination of their employment. WORKERS’ COMPENSATION - EMPLOYERS VIOLATION OF RSA 281-A:25-a Appeal of Patrick W. Holloran BROCK, C.J. The petitioner appeals the decision of the New Hampshire Compensation Appeals Board (board) holding that it lacks authority to assess an employer’s workers’ compensation insurance carrier for an employer’s violation of RSA 281-A:25-a (1999). The supreme court reversed and remanded. The petitioner was injured at work and received workers’ compensation benefits through CNA Insurance Company. When he was able to return to work, his employer refused to reinstate him. After a hearing, the hearing officer found that the petitioner was entitled to reinstatement and that his employer was obligated to pay benefits retroactive to the date he should have been reinstated. The petitioner appealed contending that CNA should make payments directly to him. The board dismissed the appeal finding that the statute did not provide for a direct action against an insurance carrier. The supreme court held that, while the statute did not explicitly mention insurance carriers, "employer" under the workers’ compensation law includes the employers insurance carrier. The court concluded that to interpret the statute to exclude insurance carriers would be to find a right without a remedy. As a result, the court stated that the department of labor had the authority to require CNA to pay the benefits due. CRIMINAL THREATENING - KIDNAPPING - DOUBLE JEOPARDY State of New Hampshire v. Ronald E. McKean DALIANIS, J. The defendant appeals his conviction for criminal threatening on the ground that it violated his rights under the double jeopardy clause of the New Hampshire Constitution. The supreme court affirmed. The defendant was charged with criminal threatening, kidnapping and criminal restraint with respect to an incident involving his wife. The charges of kidnapping and criminal restraint were alternate theories and the jury was instructed that the defendant could only be found guilty of one of the charges. Because the trial court found that the indictments for kidnapping and criminal threatening contained proof of an element not contained in the other indictment, these indictments did not violate the double jeopardy clause. The defendant was convicted of kidnapping and criminal threatening and appeals arguing these indictments allege the same offense and that criminal threatening is a lesser included offense of kidnapping. The supreme court found that since the elements of the two indictments differed, criminal threatening was not a lesser included offense of kidnapping. Moreover, the court found that proof of the elements as charged required different evidence. It held that the similarity in evidence did not mean the same evidence was required for all elements. The supreme court further stated that the fact that each indictment arose out of the same incident did not make them a single offense. CRIMINAL LAW - WARRANTLESS SEARCH - APPARENT AUTHORITY DOCTRINE State of New Hampshire v. Charles Sawyer DALIANIS, J. The defendant appeals his convictions for possession with intent to distribute on the grounds that the trial court erred in not granting his motion to suppress evidence obtained from a warrantless search. The supreme court affirmed. After being pulled over by police, the driver, Joseph Stearns consented to a search of his vehicle which revealed marijuana inside a bag located in the back seat. Stearns, the defendant and another passenger were arrested and the defendant indicated the marijuana was his. The defendant challenges the search of his bag contending Stearns had no authority to give consent to search his bag. With respect to the search of the defendant’s bag, the supreme court considered the doctrine of apparent authority in determining whether Stearns had authority to consent to the search of the defendant’s bag. The supreme court adopted the apparent authority doctrine with respect to consensual searches stating that apparent authority exists when, under the totality of the circumstances available to police at the time, it was objectively reasonable to believe that the third party had authority to consent to the search of the property. Based upon the totality of the circumstances, the supreme court found that it was reasonable for the officer to believe that Stearns had authority to consent to the search of the bag.
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