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Bar News - March 22, 2002 NH Supreme Court Summaries CRIMINAL THREATENING State of New Hampshire v. Frederick J. Fuller NADEAU, J. The defendant appeals his conviction of criminal threatening on the grounds that the trial court did not properly define "with a purpose to terrorize" in its jury instructions; that the State did not present sufficient evidence; and that the trial court erroneously admitted a written statement of a witness as a prior consistent statement. The supreme court reversed and remanded. The defendant was charged with criminal threatening as a result of statements he made to Robert Soloman during a telephone conversation. He was convicted on two of the three counts. The defendant contends that in its instructions to the jury, the court described terror with words that are lesser variants of terror, such as alarm, fright, dread or hurt. The supreme court agreed and held, that based upon the case law, a jury must conclude that the defendant had a purpose to cause extreme fear. With respect to the defendant’s contention that the State lacked sufficient evidence, the supreme court held that the State did present enough evidence for a reasonable jury to conclude beyond a reasonable doubt that the defendant threatened the victim with a purpose to terrorize him. SECURITY TAKEOVER DISCLOSURE ACT - NON-HOSTILE - MERGER - SHAREHOLDERS Andrew S. Kaplan & a. v. Booth Creek Ski Group, Inc. & a. DUGGAN, J. The plaintiffs, shareholders of Loon Mountain Recreation Corporation Inc. (Loon), sought to prevent the acquisition of Loon by the defendants until the defendants complied with the Security Takeover Disclosure Act (Act). The plaintiffs appeal the trial court’s order dismissing their action on the basis that the Act does not apply. The supreme court affirms. The Board of Directors of Loon reached a merger agreement with the defendant, allowing the defendant to acquire all of its stock. The agreement provided that a subsidiary of the defendant would then merge with Loon and Loon would be the surviving corporation. The New Hampshire Bureau of Securities Regulation (Bureau) found that the Act did not apply as this was a non-hostile takeover. Therefore, the defendant did not file a registration statement under the statute. After the merger, the plaintiffs sought to force the defendants to comply with the Act and the trial court held that the Act did not apply. The supreme court held that to apply the Act to statutory mergers would not further the Act’s purpose of protecting shareholders faced with a tender offer because in a statutory merger the acquiring company is not requesting tenders of equity, but rather is engaged in negotiations with the board of directors in order to create a plan of merger. Therefore, the court held that, unlike tender offers, there is no direct solicitation of shareholders in a merger transaction. The supreme court further held that because the board of directors has a fiduciary duty to supply shareholders will all material information relative to their decision, applying the Act to a statutory merger would not further the Act’s purpose of protecting the shareholders. CHILD SUPPORT - STOCK OPTIONS In the Matter of Robert P. Dolan DALIANIS, J. The petitioner appeals the superior court’s decision that his child support payments be increased to reflect the exercise of stock options he acquired after his divorce from the respondent. The supreme court affirms in part, vacates in part and remands. The parties were divorced and the respondent has physical custody of their children. Child support was calculated based upon the petitioner’s annual salary. Two years after the divorce, the respondent moved to increase child support alleging the petitioner’s gross salary had increased due to his stock options. The superior court found that the petitioner’s stock options constituted income for child support purposes and the petitioner appealed. The supreme court held that under the broad definition of gross income under the child support statute, the petitioner’s stock options must be included as income. The court stated that if the exercised stock options were not deemed income, a person could avoid child support obligations by choosing to be compensated in stock options as opposed to salary. Due to this policy consideration, the court found that stock options must be considered income in order to ensure that the children enjoy a standard of living equal to that of the petitioner’s subsequent family. The supreme court rejected the petitioner’s argument that the stock options did not provide a reliable source of revenue, stating that the statutory definition of income includes other types of nonrecurring income. Lastly, the supreme court held that the trial court abused its discretion in the manner in which it included the petitioner’s stock options as income by applying a formula to the petitioner’s salary alone. Therefore, the case was remanded. TAXING DISTRICTS – COOPERATIVE SCHOOL DISTRICTS Gordon Allen & a. v. The State of New Hampshire DALIANIS, J. This is an interlocutory transfer asking whether cooperative school districts are the appropriate taxing districts for taxes assessed to pay for educational services beyond those paid for with State funds. The supreme court answered the question in the negative. The petitioners initiated this action alleging that the differing tax rates within the Con-Val and Masenic cooperative school districts violated the proportional and reasonable requirement of Part II, Article 5 and the equal protection provisions of Part I, Articles 1, 2 and 12 of the New Hampshire Constitution. The trial court held for the State, finding that the individual towns were the taxing districts and that the rates could vary from town to town. The supreme court relied on its earlier decisions stating that the taxing district for Part II, Article 5 purposes is the town and not the cooperative school district. Therefore, differences in local education tax rates among towns in a cooperative school district do not violate Part II, Article 5 of the New Hampshire Constitution. The supreme court further held that just because taxpayers within towns comprising a cooperative school district share a common burden, does not require that they be treated as a group for Part II, Article 5 purposes. Lastly, the supreme court rejected the petitioner’s argument that the legislature intended that cooperative school districts be the taxing districts, holding that RSA chapter 195 demonstrated that the legislature intended that towns be the relevant taxing districts. SELF-DEFENSE - JURY INSTRUCTION - CROSS-EXAMINATION OF VICTIM The State of New Hampshire v. Darren Bashaw DALIANIS, J. The defendant appeals his conviction on first degree assault charges on the grounds that the trial court erred in instructing the jury on self-defense and impermissibly precluded him from cross-examination the victim about a prior theft. The supreme court reverses and remands. At trial, the court instructed the jury that a defendant does not have the right to claim self-defense when the defendant provoked the use of force or when the defendant started the encounter. The supreme court held that the defendant does not lose his right to use deadly force in self-defense unless he uses words to bring about a fight in which he intended at the outset to kill or seriously injure his opponent. While the jury may have found that the defendant started the argument, since the trial court did not explain adequately the circumstances under which a defendant may not use deadly force in self-defense, its instruction was erroneous. With respect to the defendant’s contention that the trial court erred in precluding his cross-examination of a prior theft of the victim under New Hampshire Rule of Evidence 608(b), the supreme court held since the incident was not probative of truthfulness or untruthfulness, the trial court properly excluded such inquiry. It further held that the trial court did not violate the defendant’s constitutional rights in precluding his right to cross-examine the victim regarding the theft incident. EXCAVATION ACTIVITY TAX Nash Family Investment Properties v. Town of Hudson & a. v. Town of Londonderry DUGGAN, J. The plaintiffs appeal the trial court’s order declaring the excavation activity tax constitutional. The supreme court reverses and remands. The towns of Hudson and Londonderry assessed taxes against property in those towns owned by the plaintiffs. The plaintiffs asserted that the taxes violated the State Constitution. The trial court held that the tax was constitutional. RSA 72-B provides that municipalities may exempt certain properties with commercial excavation activity from real estate taxation and, instead, impose an excavation activity tax. Further, the State constitution allows the legislature to classify property as taxable or non-taxable and the legislature’s exercise of its discretion will be upheld provided there are just reasons. The plaintiffs argue that the statute creates an improper classification of property for taxation. The supreme court rejected the plaintiffs argument finding that the imposition of the tax was a rational method to achieve the legislature’s goal of promoting effective use and management of earth deposit sites, as well as encouraging compliance with the State’s regulations. The plaintiffs next argue that the methods used to calculate the tax lead to disproportionate results in violation of the State Constitution. The supreme court held that the statute ignored important factors in determining a parcel’s value and therefore, the true value of the property could not be calculated with accuracy. As a result, the supreme court stated that the statute was unconstitutional on its face. COMPENSATION APPEALS BOARD - PERMANENT IMPAIRMENT Appeal of Lois Hiscoe DALIANIS, J. The petitioner appeals the decision of the New Hampshire Compensation Appeals Board denying her an award for permanent impairment and terminating her disability benefits. The supreme court affirms. The petitioner injured her lower back while at work. She received temporary total disability benefits until her return. When she attempted to return to work, however, she could not perform her duties without suffering back pain. She thereafter retired. The petitioner was evaluated by a physician who found she had suffered a 7% whole person permanent impairment, but that she had reached a medical endpoint and could begin doing light work. The petitioner then filed a claim with the department of labor requesting a permanent impairment award. Most of the medical reports at the hearing suggested that the petitioner’s back injury had resolved and that any current disability was caused by a pre-existing condition. The petitioner contends that the board deprived her of due process when it terminated her benefits because it required her to prove that her condition was causally related to her workplace injury. The supreme court found that the board placed the burden on the respondents, not the petitioner and that the petitioner had adequate notice that causation would be an issue at the hearing. With respect to the petitioner’s contention that the board did not have jurisdiction to address the issue of casual relationship, the supreme court held that, since the issue was raised before the department of labor, the board had jurisdiction to review the issue. The petitioner further argues that the respondents failed to prove that she had a change in condition which would enable her to perform her regular work. The supreme court held that the respondents presented substantial medical evidence that the petitioner’s injury had resolved and that her continued disability was related to a pre-existing condition. With respect to the issue of the permanent impairment award, the supreme court held that the board did not err in denying her the award because her injury was not a compensable permanent impairment under the statute.
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