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Bar News - June 12, 2009


NH Supreme Court At-a-Glance May 2009

CRIMINAL LAW

State v. Scott W. Veale
Hillsborough-Northern Judicial District
Nos. 2006-043 2008-442
Affirmed

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Andrew R. Schulman on the brief and orally), for the defendant.
  • Whether competency determinations sufficiently implicate reputational interests to warrant the protection afforded by the State Due Process Clause. The Court held that they do.
The defendant appeals only the denial of his motion to vacate a prior competency finding, arguing that he was denied due process in the competency determination. He cites the Due Process Clauses of the Fourteenth Amendment to the Federal Constitution and Part I, Article 15 of the State Constitution. "The ultimate standard for judging a due process claim is the notion of fundamental fairness." Saviano v. Director, N.H. Div. of Motor Vehicles, 151 N.H. 315, 320 (2004). Undoubtedly, the state constitutional right to due process protects defendants from standing trial if they are legally incompetent. See State v. Zorzy, 136 N.H. 710, 714 (1993); State v. Champagne, 127 N.H. 266, 270 (1985). The defendant’s due process challenge, however, does not implicate this right. Indeed, the competency proceedings below resulted in a dismissal of the two indictments, and resulted in no confinement because the defendant was found not to be dangerous. The defendant grounds his due process challenge on the stigma attached to his reputation by virtue of the incompetency finding. we find ample support in our jurisprudence for the proposition that reputational stigma can, by itself, constitute a deprivation of liberty deserving due process.

Accordingly, we hold that competency determinations sufficiently implicate reputational interests to warrant the protection afforded by the State Due Process Clause. See Harris v. Nashville Trust Co., 162 S.W. 584, 585 (Tenn. 1914) ("The enjoyment of private reputation unassailed is a right entitled to the protection of the law and of the Constitution as much as are the rights to the possession of life, liberty, or property."); cf. R. v. Com., Dept. of Public Welfare, 636 A.2d 142, 149 (Pa. 1994) (recognizing that Pennsylvania’s State Constitution expressly recognizes reputation as a fundamental interest enjoying due process protection). two substantial interests are particularly relevant in the competency determination: the stigma attached to a finding of legal incompetency and the constitutional right not to be tried if incompetent. After balancing the private interest here at issue; the risk of an erroneous deprivation of that interest through the procedures used, and the probable value of additional procedural safeguards; and the Government’s interest, we conclude that due process does not require additional process under the State Constitution.



State v. Gabriel Bilc

Hillsborough-Northern Judicial District
No. 2008-378
Reversed and Remanded

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the memorandum of law and orally), for the State.

Kenna, Johnston & Sharkey, P.A., of Manchester (Kevin E. Sharkey on the brief and orally), for the defendant.

  • Whether a conviction under RSA 625:9, VIII in district court, which by law is converted from a Class A misdemeanor to a Class B, can be appealed to the superior court de novo when Class B misdemeanors are not appealable de novo. The Court held the convictions can be appealed de novo.
The defendant, Gabriel Bilc, appeals an order of the Superior Court (McGuire, J.) granting the State’s motion to remand his cases to the Hillsborough District Court on the basis that the convictions are class B misdemeanors, which cannot be appealed to the superior court. The defendant was charged in district court with one count of criminal threatening and one count of criminal trespass, both class A misdemeanors. See RSA 631:4 (2007); RSA 635:2 (2007); RSA 625:9, IV(a)(2) (2007). Following a bench trial, the defendant was found guilty and fined $350 plus a $70 penalty assessment on each charge. The defendant appealed to the superior court, seeking a jury trial on both charges.

The State moved to remand the cases to the district court, arguing that the defendant’s appeal to the superior court for a trial de novo was improper because RSA 625:9, VIII (2007) converts district court convictions for class A misdemeanors to class B misdemeanor convictions whenever the sentences imposed consist only of fines less than $1,200. The defendant objected, arguing that the State and Federal Constitutions guarantee the right to a jury trial whenever a defendant is charged with a criminal offense carrying a possible penalty of one year’s incarceration, regardless of the sentence actually imposed.

On appeal the defendant argues that the trial court’s ruling that he was not entitled to a jury trial violates Part I, Article 15 of the New Hampshire Constitution and the Sixth Amendment to the United States Constitution. The State agrees that, as applied in this case, RSA 625:9, VIII, read in conjunction with RSA 599:1 (Supp. 2008), deprived the defendant of his right to a jury trial.

Under the New Hampshire Constitution, the right to a jury trial is guaranteed to "all criminal defendants facing the possibility of incarceration." Opinion of the Justices (DWI Jury Trials), 135 N.H. 538, 542 (1992). Having been found guilty of two class A misdemeanors, the defendant faced possible incarceration, thereby entitling him to seek a de novo jury trial in the superior court. We hold that, as applied by the superior court, the provisions of RSA 625:9, VIII operated to deny the defendant’s rights in violation of Part I, Article 15 of our State Constitution. Accordingly, we reverse the superior court’s ruling and remand for proceedings consistent with this opinion.



State v. Steeves
Derry District Court
No. 2008-372
AFFIRMED

Kelly A. Ayotte, attorney general (Francesca Stabile, attorney, on the brief and orally), for the State.

Law Office of Michael Bowser, P.C., of Nashua (Michael S. Bowser, Jr. on the brief and orally), for the defendant.
  • Whether the police lacked reasonable suspicion to effectuate the initial "stop" of the defendant’s motorcycle, which was already stopped on the side of the road. Whether the "stop" by the police was justified under the community caretaking exception to the warrant requirement. The Court held that the stop was justified.
Following his conviction for driving a motorcycle while intoxicated, (See RSA 265-A:2, I Supp. 2008), the defendant, Christopher Steeves, appeals a ruling of the Derry District Court (Coughlin, J.) denying his motion to suppress. Before trial, the defendant moved to suppress "evidence seized from [him] including statements . . . and any incriminating observations." The court deferred ruling on this motion. At the close of testimony, the court denied the motion.

On appeal, the defendant argues that the police lacked reasonable suspicion to effectuate the initial stop. He also argues that arresting officer cannot justify the stop under the community caretaking exception to the warrant requirement. In support of his argument, the defendant cites the Fourth Amendment to the Federal Constitution and Part I, Article 19 of the State Constitution. In deciding whether the officer conducted a lawful investigatory stop, we conduct a two-step inquiry: first, we determine when the defendant was seized; second, we determine whether, at that time, the officer possessed a reasonable suspicion that the defendant was, had been or was about to be engaged in criminal activity. State v. Pepin, 155 N.H. 364, 365 (2007). Pulling behind a vehicle stopped on the roadside does not, by itself, constitute a seizure. "Numerous courts recognize that when an officer approaches a person . . . in a parked car and asks questions, this in and of itself does not constitute a seizure." Id. Similarly, Officer Doyle’s requests for license and registration did not effectuate a seizure. "A seizure does not occur simply because a police officer approaches an individual and . . . asks to examine the individual’s identification . . . ." State v. Brown, 155 N.H. 164, 168 (2007); accord 4 W. LaFave, Search and Seizure § 9.4(a), at 431-32 (4th ed. 2004). We hold that, on these facts, the police did not effectuate a seizure when the arresting officer activated only the rear blue lights on his cruiser (to warn motorists approaching from behind the cruiser and the stopped motorcycle). Because the arresting officer had not yet seized the defendant upon first speaking with him (See Beauchesne, 151 N.H. at 809), and because the defendant’s appearance and conduct created a reasonable suspicion that he was driving under the influence of alcohol, (See Pepin, 155 NH at 366, discussing reasonable suspicion), the police in this case lawfully administered additional field sobriety tests, See State v. Livingston, 153 N.H. 399, 404-05 (2006) (discussing proper scope of an investigatory stop), and arrested the defendant after determining that he was impaired, See RSA 594:10, I (Supp. 2008).



State v. Bernard Lindsey
Merrimack Superior
No. 2008-347
Affirmed

Kelly A. Ayotte, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.

David Betancourt, public defender, of Dover, on the brief and orally, for the defendant.
  • Whether the evidence at trial was sufficient to convict for resisting arrest. The Court held it was.
The defendant, Bernard Lindsey, appeals his conviction for resisting arrest, See RSA 642:2 (Supp. 2008), arguing that the Superior Court (Mangones, J.) erred in denying his motion to dismiss the charge at the close of the State’s case. He contends that the evidence was insufficient to support his conviction because once the police detained him by handcuffing and forcing him to lie on the floor, his subsequent conduct was not culpable under the resisting arrest statute.

The Concord police were called to the defendant’s apartment to investigate a "911" hang-up when they heard breaking glass and yelling coming from within the apartment; once inside, the officers encountered the defendant who was holding a large knife gesturing and yelling towards another room within the apartment. The defendant, along with others were arrested and handcuffed. As the officers were assessing the scene the defendant was pushing and pulling away from the officers and "bull-rushing" towards them. Another officer approached to help, but the defendant, while hand-cuffed, yelled, screamed and kicked. We construe the phrase "seeking to effect an arrest or detention" as including the entire course of events during which law enforcement officers seek to secure and maintain physical control of an individual, attendant to accomplishing the intended law enforcement duty. (See Shambor v. State, No. 223, 2002 WL 31235416, at *1 (Del. Super. Oct. 4, 2002) (prohibition against resisting arrest applies to entire process or course of events in which law enforcement is securing individual); Com. v. Green, No. 02-P-678, 2003 WL 22399532, at *2 (Mass. App. Ct. Oct. 21, 2003).

Viewing the evidence and all reasonable inferences in the light most favorable to the State, we conclude that a reasonable juror could have concluded that the brief time period in which the defendant was face down on the floor while handcuffed did not serve to conclude the process of seeking to effect his detention. See, e.g., Katykhin, 794 N.E.2d at 1292 (handcuffing does not automatically conclude the continuing course of conduct in which police were effecting arrest); Ondo, 231 S.W.3d at 316 (struggle that ensued after defendant was peaceably handcuffed supported conviction for resisting arrest). Accordingly, viewing the continuum of events as a whole, we conclude that the evidence is sufficient to support his conviction.



State v. Charles Cook
Belknap Superior Court
No. 2008-392
Reversed and Remanded

Kelly A. Ayotte, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.

Jeffco, Starbranch & Soldati, of Portsmouth (Lincoln T. Soldati on the brief and orally), for the defendant.
  • Whether the trial court erred in denying his motion in limine to exclude evidence of similar conduct in Pennsylvania and in denying his motion to dismiss the misdemeanor simple assault charge. The Court held that the trial court erred.
The defendant, Charles Cook, appeals from a jury verdict in Superior Court (Smukler, J.) convicting him of one count of aggravated felonious sexual assault, see RSA 632-A:2, III (Supp. 2008), and one count of simple assault, See RSA 631:2-a, I(a) (2007). On appeal, the defendant argues that the trial court erred in denying his motion in limine to exclude evidence of similar conduct in Pennsylvania and in denying his motion to dismiss the misdemeanor simple assault charge. Before trial, the defendant filed a motion in limine seeking to exclude prior bad acts pursuant to New Hampshire Rule of Evidence 404(b).

The defendant faced charges in Pennsylvania of aggravated indecent assault, indecent assault, and corruption of minors arising out of similar acts during the same time period and involving the same victim. The trial court, pursuant to a Rule 404(b) analysis, admitted the Pennsylvania acts that were the same as those alleged in the pattern indictment. On appeal, the defendant argues that the trial court erred in: (1) admitting the Pennsylvania acts and its instruction to the jury; and (2) denying his motion to dismiss the simple assault charge. The purpose of Rule 404(b) is to ensure that the defendant is tried on the merits of the crime as charged and to prevent a conviction based upon evidence of other crimes or wrongs. State v. Beltran, 153 N.H. 643, 647 (2006). We have established a three-part test for the admissibility of evidence under Rule 404(b): (1) the evidence must be relevant for a purpose other than proving the defendant’s character or disposition; (2) there must be clear proof that the defendant committed the act; and (3) the probative value of the evidence must not be substantially outweighed by its prejudice to the defendant. Viewing the evidence in this case in its entirety, we cannot conclude beyond a reasonable doubt that the inadmissible evidence did not affect the jury’s decision to convict.

The defendant was charged with committing a pattern of sexual assault, requiring the State to prove that the charged sexual assault occurred more than once. See RSA 632-A:1, I-c (Supp. 2008) ("pattern" is defined as more than once over a period of between two months and five years). During closing argument, the State mentioned the Pennsylvania acts twice. Because the inadmissible evidence was intertwined with the alternative admissible evidence at trial, we cannot conclude that it was inconsequential. Indeed, we have stated that "some acts have a great emotional impact upon a jury and have greater potential for appealing to a juror’s sense of resentment or outrage." State v. Marti, 140 N.H. 692, 695 (1996). In Marti, the trial court admitted testimony by the victim of prior uncharged sexual assaults perpetrated by the defendant. Id. We stated that many of the assaults "were identical to the charged crime," which, "[b]y its nature . . . is precisely the sort of evidence that could create an undue tendency to induce a decision against the defendant on some improper basis, for it effectively obscured the charged offense and may have tempted the jury to condemn the defendant for uncharged acts." Id. (quotation, citation and brackets omitted). We concluded that, similar to here, the character of the inadmissible evidence prevented us from saying that the error was harmless. Id.; See State v. Montgomery, 144 N.H. 205, 210 (1999) ("Given the character of the improper evidence and the gravity of its potential prejudicial impact, we cannot say that the trial court’s admission of uncharged acts of sexual assault was harmless beyond a reasonable doubt.").



State v. Thomas Howell
Hillsborough–Southern Judicial District
No. 2008-509
Affirmed and Remanded

Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
  • Whether the trial court incorrectly denied the defendant’s motion to dismiss the subject indictments as in violation of his protections against double jeopardy articulated in Part I, Article 16 of the New Hampshire Constitution and the Fifth Amendment to the United States Constitution where the defendant was placed in jeopardy at the first trial, the defendant moved to dismiss the indictments at that trial based upon facts adduced at trial, the defendant could not have been convicted of the offense charged, and the State afforded itself a more favorable opportunity to convict the defendant with the present indictment. The Court held that double jeopardy does not bar reprosecution in this case, and that the trial court correctly denied the defendant’s motion on that ground.
This is an interlocutory appeal from a ruling by the Superior Court (Nicolosi, J.), denying the defendant’s motion to dismiss the indictments against him. the defendant, Thomas Howell, was indicted on four counts of aggravated felonious sexual assault (AFSA) under RSA 632-A:2, 2 I(l) (2007). The day of trial, at the State’s request, the grand jury issued four superseding indictments for AFSA under RSA 632-A:2, II (2007). The new indictments alleged the same conduct, but substituted the mens rea of "purposely" in the place of "knowingly," and added the allegation that the defendant committed the acts "for the purpose of sexual arousal or gratification."

The State entered a nolle prosequi on the first set of indictments, and the defendant proceeded to trial that day on the superseding indictments. After both parties questioned A.K., the defendant moved to dismiss, arguing that the provision of RSA 632-A:2 under which he was indicted was not enacted until 1992, two years after the charged conduct, and that the indictment thus failed to allege a crime. Both the State and trial court agreed that proceeding under RSA 632-A:2 would constitute an ex post facto violation. At the State’s request, and over the defendant’s objection, the trial court declared a mistrial and dismissed the indictments. Nineteen months after the dismissal, the State obtained new indictments alleging four counts of AFSA under RSA chapter 632-A (Supp. 1981) (amended 1986). The defendant moved to dismiss the indictments, arguing they violate his right against double jeopardy and his right to a speedy trial. See U.S. CONST. amends. V, VI; N.H. CONST. pt. I, arts. 14, 16. After a hearing, the trial court denied his motions as well as his subsequent motion for reconsideration. The defendant sought interlocutory review of his claims.

In general, the Double Jeopardy Clause provides that a defendant may not be twice placed in jeopardy for the same offense. N.H. CONST. pt. I, art. 16; State v. Ringuette, 142 N.H. 163, 165 (1997). As a corollary, "It is fundamental that . . . the defendant has a valued right to have his trial completed by a particular tribunal." State v. Solomon, 157 N.H. 47, 50 (2008) (quotation omitted). "The right to a particular tribunal is [a defendant’s] right to complete a trial with a chosen jury, once sworn, or a particular judge, once evidence has commenced." Id.

The right "does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment." Illinois v. Somerville, 410 U.S. 458, 470 (1973). The defendant’s valued right "must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments." Id. (quotation and emphasis omitted). "The determination by the trial court to abort a criminal proceeding 4

Where jeopardy has attached is not one to be lightly undertaken," Id. at 471, and "should be exercised only with the greatest caution, under urgent circumstances, and for very plain and obvious cases." Solomon, 157 N.H. at 50-51 (quotation omitted). When a trial ends in mistrial, a defendant can be retried only if he consents to the mistrial, or, if he objects, upon a finding of the trial court that there is "manifest necessity for the act, or [that] the ends of public justice would otherwise be defeated." Bertrand, 133 N.H. at 853; See State v. Gould, 144 N.H. 415, 416 (1999). The defendant argues that the circumstances here are similar to those in Downum v. United States, 372 U.S. 734, 735 (1963), thus requiring reversal. We disagree. The record clearly indicates that the trial court made the appropriate inquiry before finding manifest necessity, and we cannot conclude that its decision was an unsustainable exercise of discretion. The post-jeopardy dismissal, therefore, does not bar the defendant’s retrial on double jeopardy grounds.



State v. Ulysses McMillan
Hillsborough-Southern Judicial District
No. 2008-278
Affirmed

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
  • Whether having a legal interest in property, such as a leasehold, is dispositive on the issue of license or privilege to enter a premises, in the context of RSA 635:1. The Court held the legal interest alone is not dispositive and one with such a right can be convicted of burglary.
The defendant, Ulysses McMillan, appeals his convictions for burglary, See RSA 635:1 (2007), and first degree assault, See RSA 631:1 (2007), following a jury trial in Superior Court (Morrill, J.). The defendant used to live with the burglary victim but was asked to leave, which he did, although he still visited regularly. One night, the defendant entered the apartment by climbing up the fire escape and entering through a bathroom window. The defendant assaulted a male guest of his ex-roommate. On appeal, the defendant first contends that the trial court erred by admitting the 911 tapes without providing a limiting instruction. This issue, however, was not preserved for appeal. The defendant next argues that the trial court’s jury instruction on the elements of burglary was erroneous because: (1) it failed to give proper weight to the defendant’s status as a leaseholder; and (2) it did not require the jury to determine whether the defendant knew he was not licensed or privileged to enter the premises. RSA 635:1, I, provides that a person is guilty of burglary if he enters an occupied section of a building with purpose to commit a crime therein, unless the premises are at the time open to the public or "the actor is licensed or privileged to enter.

We hold that a legal interest in property, such as a leasehold, is not dispositive on the issue of license or privilege. Consistent with the majority of jurisdictions that have confronted this issue, we believe that the fact finder must look beyond legal title and evaluate the totality of the circumstances in determining whether a defendant had license or privilege to enter. We therefore conclude that the trial court did not unsustainably exercise its discretion in its jury instruction. The trial court specifically instructed the jury that it may consider "all of the evidence," including the defendant’s legal title to the property, in determining whether the defendant had license or privilege to enter.

The jury instruction also provided a list of relevant, although not exclusive, factors, such as the defendant’s method of entry, his past entries, and the length of their separation, which adequately conveyed to the jury the meaning of the license or privilege element. Thus, the trial court adequately and accurately explained this element of the offense. In this case, the jury heard evidence that the defendant had moved out of the apartment, removed his personal property, and no longer had a key. Further, the jury heard evidence regarding the nature of the defendant’s violent entry into the apartment on the day in question. Based upon this evidence, a rational trier of fact could have found beyond a reasonable doubt that the defendant did not possess license or privilege to enter the apartment.



State v. Joshua Shepard
Grafton County Superior Court
No. 2008-272
Reversed

Kelly A. Ayotte, attorney general (Michael S. Lewis, assistant attorney general, on the brief and orally), for the State.

Paul Borchardt, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

  • Whether the evidence was sufficient to support the denial of the defendant’s motion to dismiss the count of criminal negligence. The Court held that the evidence was not sufficient and that the trial court erred when it did not grant the defendant’s motion.
The defendant, Joshua Shepard, appeals his conviction for three counts of negligent homicide and one count of vehicular assault following a jury trial. See RSA 630:3, I (2007); RSA 265:79-a (2004). He argues that the Superior Court (O’Neill, J.) erred when it denied his motions to dismiss the indictments against him and for judgment notwithstanding the verdict (JNOV). The grand jury returned three indictments alleging that the defendant negligently caused the death of three motorists. The grand jury also returned a fourth indictment alleging that the defendant negligently caused serious bodily injury to another motorist.

At the conclusion of the State’s case, the defendant moved unsuccessfully to dismiss the indictments on the ground that the State had failed to prove beyond a reasonable doubt that his conduct was criminally negligent. See RSA 630:3, I; see also State v. Rollins-Ercolino, 149 N.H. 336, 341 (2003) (holding that vehicular assault statute, RSA 265:79-a, requires proof of criminal negligence). To prevail upon his challenge to the sufficiency of the evidence, the defendant must prove that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. Evans, 150 N.H. 416, 424 (2003).

To have convicted the defendant either of negligent homicide or vehicular assault, the jury must have found, beyond a reasonable doubt, that he acted negligently as defined in RSA 626:2, II(d) (2004). See RSA 630:3, I ("A person is guilty of a class B felony when he causes the death of another negligently"); Rollins-Ercolino, 149 N.H. at 341. Under RSA 626:2, II(d), a person acts "negligently with respect to a material element of an offense when he fails to become aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct." RSA 626:2, II(d) specifies that "[t]he risk must be of such a nature and degree that his failure to become aware of it constitutes a gross deviation from the conduct that a reasonable person would observe in the situation."

Whether the defendant failed to become aware of a "substantial and unjustifiable risk" is determined by an objective test, not by reference to the defendant’s subjective perception. State v. Ebinger, 135 N.H. 264, 265-66 (1992). Not every act of carelessness that results in a death or serious bodily injury entails criminal negligence, however, and a person charged with criminal negligence may not be convicted on evidence that establishes only ordinary negligence. See State v. Littlefield, 152 N.H. 331, 350 (2005). In the instant case, there is no evidence that the defendant had consumed any alcohol or drugs before driving. Nor was there was any evidence that he was speeding. At most, the evidence shows that his car inexplicably drifted over the double yellow line and into oncoming traffic for no more than two seconds. The defendant’s two-second failure to keep his car in its lane may constitute civil negligence, but, without more, it does not constitute criminal negligence as a matter of law.



In Re Nicholas L.

Strafford County Probate Court
No. 2008-084
Affirmed

Bernson Legal and Guardian ad Litem Services, P.L.L.C., of Dover (Tracy A. Bernson on the brief and orally), for the respondent.

Kelly A. Ayotte, attorney general (Suzanne M. Gorman, senior assistant attorney general, on the memorandum of law and orally), for the State.
  • Whether RSA 516:29-b (disclosure of expert witnesses and reports) applies to non-emergency involuntary admission proceedings under RSA chapter 135-C. The Court held it does not.
The respondent, Nicholas L., appeals a decision of the Strafford County Probate Court (Cassavechia, J.) denying his motion to dismiss the State’s petition for non-emergency involuntary admission because the State failed to disclose psychiatrist David Schopick, M.D., as an expert witness pursuant to RSA 516:29-b (2007). The respondent suffers from a severe psychiatric illness. In 2006, he was charged with second degree assault, simple assault and false imprisonment involving his then-girlfriend. The superior court found that he was incompetent to stand trial on these charges. Pursuant to RSA 135-C:40 (2005), the probate court appointed Dr. Schopick to evaluate the respondent. Dr. Schopick concluded that the respondent met the standard for non-emergency involuntary admission pursuant to RSA 135-C:34 (2005), and recommended that he be civilly committed for the maximum duration of five years.

On the day of the commitment hearing, the respondent moved to dismiss, arguing that the State would be unable to meet its burden of proof because it had not disclosed any expert witnesses that it intended to call. The State responded that Dr. Schopick would testify, that his report put the respondent on notice as to the content of his testimony, and that the State did not have an obligation to disclose Dr. Schopick because he had been appointed by the court. RSA 516:29-b requires parties in civil cases to disclose to their opponents any expert witness and, unless the parties so stipulate or the court orders otherwise, to provide for each such witness a written report that includes specific information. The State counters that RSA 516:29-b does not apply to non-emergency involuntary admission proceedings under RSA chapter 135-C.

Whether the disclosure requirements of RSA 516:29-b apply to court-appointed experts in involuntary civil commitment proceedings pursuant to RSA chapter 135-C is an issue of first impression and requires that we engage in statutory interpretation.

We hold that RSA 516:29-b does not apply to the facts of this case. Under RSA 516:29-b, a party is required to make disclosures "with respect to a witness who is retained or specially employed to provide expert testimony in the case." Here, neither party employed or retained Dr. Schopick; he is independent of the parties and was appointed by the court.


TORTS-WRONGFUL DEATH/PERSONAL INJURY

Heidi L. Mikell, Administrator of the Estate of Joshua R. v. School Administrative Unit #33 & a.
Rockingham Superior Court
No. 2008-737
Affirmed

Cleveland, Waters & Bass, P.A. , of Concord (William B. Pribis and Lisa M. Blanchard on the brief, and Mr. Pribis orally), for the plaintiff.

Getman, Stacey, Schulthess & Steere, P.A. , of Bedford (Dona Feeney on the joint brief and orally) for defendants School Administrative Unit #33, Susan Allen, and Lindy L. Moule.

McDonough & O’Shaughnessy, of Manchester (Robert Whaland on the joint brief), for defendants Susan Allen and Lindy L. Moule.
  • Whether the trial court erred in dismissing the plaintiff’s claims because the defendants owed her minor son a general and special duty to prevent his suicide and, further, that the school guidance counselor had voluntarily assumed a duty to act reasonably to prevent his suicide and whether the trial court erred in concluding that a teacher’s conduct toward her son the was not extreme and outrageous. The Court held that the defendant had only a general duty and that that the teacher’s conduct, while reprehensible, did not meet the extreme and outrageous standard for intentional infliction of emotional distress.
The plaintiff, Heidi L. Mikell, as administrator of the estate of her son, Joshua R. Markiewicz, appeals an order of the Superior Court 2 (McHugh, J.) dismissing her claims against the defendants, School Administrative Unit #33 (SAU #33), Susan Allen, and Lindy L. Moule. On January 18, 2005, Allen, a special education teacher, reported to the vice-principal that Joshua had referred to two mints on his desk as medicine. The plaintiff alleges Allen did so "falsely and knowingly" in an attempt to affect his disciplinary record, and winked at Joshua while reporting the incident as "an acknowledgement of her lie." Joshua was suspended, and the plaintiff was called to pick him up.

Upon arriving home, Joshua went immediately to his room without speaking to his mother. Soon after, the plaintiff left to bring Joshua’s grandfather, who had accompanied her to the school, to his residence. When she returned, she found Joshua had hanged himself. Joshua left a suicide note, which, among other things, stated he was telling the truth about the disciplinary incident involving Allen. The plaintiff subsequently brought an action against SAU #33, Moule and Allen, alleging negligence claims against SAU #33 and Moule, intentional infliction of emotional distress and wrongful death claims against Allen, and vicarious liability claims for both Moule and Allen against SAU #33.

On appeal, the plaintiff argues that the trial court erred in dismissing her claims against SAU #33 and Moule because they owed Joshua a general and special duty to prevent his suicide and, further, that Moule had voluntarily assumed a duty to act reasonably to prevent his suicide. The plaintiff further contends that the trial court erred in concluding that Allen’s conduct was not extreme and outrageous. She also argues that the trial court erred when it determined that the disciplinary incident on January 19 was the more likely cause of Joshua’s decision than Allen’s conduct on January 18.

As a general rule, negligence actions seeking damages for the suicide of another will not lie because the act of suicide is considered to be a deliberate, intentional and intervening act, which precludes a finding that a given defendant is, in fact, responsible for the harm. McLaughlin v. Sullivan, 123 N.H. 335, 337 (1983). "This is because the act of suicide breaks the causal connection between the wrongful or negligent act and the death." Bruzga v. PMR Architects, 141 N.H. 756, 757-58 (1997) (quotation omitted). A number of jurisdictions, however, have recognized two exceptions to that general rule. Id. at 758. "Under one exception, liability exists because the defendant actually caused the suicide; under the other, liability exists because the defendant had a duty to prevent it." Maloney v. Badman, 156 N.H. 599, 603 (2007). With respect to the first exception, the plaintiff argues that Allen’s false report of misconduct was extreme and outrageous, and that a reasonable fact finder could have determined Allen’s conduct was a substantial cause of Joshua’s suicide. when an action for wrongful death by suicide lies as an intentional tort, the plaintiff has the burden to prove that the defendant intentionally engaged in extreme and outrageous conduct that caused extreme emotional distress, and that this emotional distress was a substantial factor in bringing about the suicide. Mayer, 127 N.H. at 87. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Restatement (Second) of Torts § 46 comment d at 73 (1965). We do not find, however, that the alleged false accusation at issue here, even coupled with Allen’s position of authority, rises to the level of extreme and outrageous conduct necessary to sustain a claim for intentional infliction of emotional distress. While there is no question that a teacher falsely reporting misconduct by a student is a reprehensible act, the circumstances of this case are simply not "beyond all possible bounds of decency." With respect to the second exception, the plaintiff asserts that the trial court erred in dismissing her claims against Moule and SAU #33 because they owed Joshua a general and special duty to prevent his suicide. "Absent a showing that the school affirmatively caused a suicide, the primary responsibility for safeguarding children from this danger, as from most others, is that of their parents; and even they, with direct control and intimate knowledge, are often helpless." Hasenfus v. LaJeunesse, 175 F.3d 68, 73 (1st Cir. 1999).



Helen Martin v. Pat’s Peak Inc.
Merrimack Superior Court
No. 2008-650

Gibson & Behman, P.C., of Manchester (Christopher W. Driscoll and Daniel J. Shanahan on the brief, and Mr. Shanahan orally), for the plaintiffs.

Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles, Jr. and Leigh S. Willey on the brief, and Ms. Willey orally), for the defendant.


  • Whether the plaintiffs, Helen Martin and her husband Michael Martin, may maintain negligence and loss of consortium claims against the defendant, Pat’s Peak, Inc. (Pat’s Peak), for injuries Helen Martin sustained while snow tubing at the Pat’s Peak’s ski area prior to legislative amendments to RSA chapter 225-A (2000 & Supp. 2008) that classify snow tubers as skiers under the statute. See RSA 225-A:2, II (Supp. 2008). The Court held they may.
  • Whether RSA 225-A applies to and bars Plaintiffs’ claims because Helen Martin’s injuries were the result of risks inherent in the sport of "skiing," as that term is defined in RSA 225-A (1978) [sic] and applicable case law? Whether the two (2) year statute of limitations under the Ski Statute RSA 225-A (1978) [sic] and (2005) [sic] or New Hampshire’s general three (3) year statute of limitations, RSA 508:4 applies to the Plaintiffs’ claims? The Court held it does not.
The Martins contend that the 1978 version of RSA 225-A:24, I, does not bar their claims because Helen Martin was not a "skier" within the meaning of the statute and her injuries were not caused by risks inherent in the sport of skiing. As previously noted, the 1978 version of RSA 225-A:24, I, bars persons "participat[ing] in the sport of skiing" from "maintain[ing] an action against the [ski area] operator for any injuries which result from . . . risks, dangers, or hazards" that are "inherent in the sport." RSA 225-A:24, I (2000). because the plaintiff "was not utilizing an alpine or Nordic slope," but rather "was utilizing a snow tube run designated exclusively for snow tubing," she did not "‘participat[e] in the sport of skiing’ as intended by the legislature in RSA 225-A:24, I." The suggestion that Sweeney may not be controlling arises from comments we made in Cecere regarding the 2005 amendments to RSA chapter 225-A.

The amendments do not, however, apply retrospectively to bar the Martins’ claims. But see Lanzilla v. Waterville Valley Ski Resort, Inc., 517 F. Supp. 2d 578, 580 (D. Mass. 2007) (reaching contrary conclusion, based upon Cecere). Part I, Article 23 of the New Hampshire Constitution prohibits retrospective laws "either for the decision of civil causes, or the punishment of offenses." N.H. CONST. pt. I, art. 23.

Thus, neither Cecere nor the 2005 amendments undermine Sweeney’s validity and it remains controlling in this case. Accordingly, we hold that Helen Martin was neither a "skier," RSA 225-A:2, IV, nor did she "participate in the sport of skiing," RSA 225-A:24, I, at the time of her injuries, and therefore RSA 225-A:24, I, does not bar the Martins’ claims.

We now turn to whether this action is governed by the two-year statute of limitations in RSA 225-A:25, IV or the general three-year statute of limitations in RSA 508:4, I (1997). Since Helen Martin was injured on February 18, 2004, the limitations period of RSA 225-A:25, IV expired on February 18, 2006. Thus, if that statute is applicable, her action filed on February 15, 2007, would be time-barred. If, on the other hand, RSA 508:4 applies, the suit was timely filed. In the instant case, however, the issue is not simply whether an amended statute or its prior version applies, but whether a statute, previously inapplicable to the plaintiffs, became applicable through a change in the definition of a term employed therein, which amended definition, moreover, could not substantively be applied to the plaintiffs.

RSA 225-A:25, IV limits the time within which an action for "injuries to any skier" may be maintained to "2 years from the time of injury." Thus the legislature defined the action to which the limitations period applied, and set its time for commencement, though reference to certain injuries; namely, injuries to a skier. Pat’s Peak’s contention that RSA 225-A:25, IV applies to the Martins presumes that the legislature intended to redefine the cause of action to which that statute relates, after the cause of action’s accrual, by redefining the class of persons who sustained injury, after the injury occurred.

This somewhat convoluted construction, however, is not readily apparent in the plain language of RSA 225-A:25, IV. Rather, the more likely construction of that statute is that the legislature intended "injuries to any skier" to be interpreted as a unitary phrase, tying the identity of the injured party as a "skier" to the time of injury. Since Helen Martin was not a "skier" within the statutory definition at the time she sustained the injuries complained of, RSA 225-A:25, IV, even as in force at the time the Martins filed suit, does not apply to their cause of action. Accordingly, RSA 508:4 applies, and the action is not time-barred.


WORKERS’ COMPENSATION

Appeal of George D. Gamas
Compensation Appeals Board
No. 2008-221
Reversed and Remanded

William E. Aivalikles, of Nashua, by brief, for the petitioner.

Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Laurence W. Getman and Tracy L. McGraw on the brief), for the respondent.
  • Whether the defendant received sufficient notice of the plaintiff’s alleged workplace injuries pursuant to RSA 281-A:19. The Court held it had.
The petitioner, George D. Gamas, appeals a decision of the New Hampshire Compensation Appeals Board (CAB) denying him recovery under the Workers’ Compensation Law. See RSA ch. 281-A (1999 & Supp. 2008). The CAB ruled that Gamas was not entitled to benefits for his asbestos-related lung condition because he had failed to timely notify the respondent, Anheuser-Busch, Inc., of his occupational disease pursuant to RSA 281-A:19.

In September 2006, Gamas filed a Notice of Accidental Injury or Occupational Disease (form 8aWCA) with his former employer claiming that he suffered from asbestosis causally related to his prior employment. Anheuser-Busch’s insurance carrier subsequently denied the claim on several grounds, including untimely and improper notice of injury. The carrier requested a hearing before the department of labor on the issue of untimely and improper notice of injury by an employee pursuant to RSA 281-A:19 and :20. After considering all the evidence, the CAB concluded that Gamas knew or should have known of his claimed lung condition and its relationship to his employment at Anheuser-Busch by May 23, 2004. The CAB ruled that Gamas’ claim was barred because it had not been filed within two years of that date as required by RSA 281-A:19.

On appeal, Gamas argues that: (1) regardless of whether his notice of injury was filed within the two-year statute of limitations, Anheuser-Busch had actual and timely notice of his injury, and, therefore, his claim should not be barred; (2) Anheuser-Busch is estopped from arguing untimely and improper notice because it knew of his asbestos-related injury and had a duty to report it but failed to do so; (3) because he had conflicting diagnoses from his doctors, he could not reasonably have known of his asbestosis and its relation to his employment until October 5, 2006, and thus his notice was timely filed; and (4) the CAB’s decision was unjust or unreasonable.

The record in this case reveals that Anheuser-Busch received timely actual notice of Gamas’ injury. The CAB concluded that Gamas knew or should have known of his claimed lung condition and its relationship to his employment at Anheuser-Busch by May 23, 2004. Gamas gave a deposition just three months later, in August 2004, indicating that he suffered from an asbestos-related lung condition and that it was causally related to his employment. By his own admission, Vance, Anheuser-Busch’s environmental, health, safety and security resident manager, was present at the deposition. At the hearing before the CAB, Vance conceded that he was "put on notice" of Gamas’ asbestos claim. Accordingly, the CAB’s factual finding that Anheuser-Busch did not have actual notice within the two-year time limit was contrary to the record and, therefore, unreasonable.


EMPLOYMENT

Appeal of Julie Motuzas
Department of Employment Security
No. 2008-412
Reversed

Franklin Pierce Law Center Civil Practice Clinic, of Concord (Mary Pilkington-Casey and Peter S. Wright, Jr. on the brief, and Mr. Wright orally), for the petitioner.

Littler Mendelson, P.C., of Boston, Massachusetts (Christopher B. Kaczmarek on the brief and orally), for the respondent.

  • Whether the DES tribunal denied the appellant benefits based upon impermissible grounds for termination. The Court held it did.
The petitioner, Julie Motuzas, appeals a decision of the New Hampshire Department of Employment Security Appeal Tribunal (tribunal), which found that she was terminated by the respondent, Sam’s East, Inc. (Sam’s Club), for misconduct. On appeal, Motuzas argues that the tribunal erred in: (1) interjecting impermissible grounds for finding misconduct; (2) finding she acted in willful disregard of her employer’s best interests; and (3) not giving her adequate notice as to the grounds for her termination, thereby violating her due process rights.

The employee was terminated, according to her employer, for two reasons. First, she was terminated for what was believed to have been the employee’s involvement in aiding and abetting the theft of televisions. Motuzas was not involved with the theft and her employer, based upon evidence which came to light throughout the tribunal process, eventually conceded that. Second, she was terminated, allegedly, for not following company policy for issuing refunds. Motuzas argues that Sam’s Club saw the improper dog food refund as a connection between her and the woman, but not as a separate incident of misconduct justifying termination. Rather, Sam’s Club terminated her solely because of its mistaken belief that she had been complicit in the loss of the televisions, and would not in fact have done so based upon the refund alone. Sam’s Club responds that it terminated Motuzas for both the improper refund and the television incident. Thus, it argues, the tribunal did not base the denial of benefits upon a justification other than that for which Motuzas was actually terminated.

Given the parties’ disagreement concerning the reason for termination, we must review the record to determine whether a reasonable person could have found that Sam’s Club terminated Motuzas on two separate grounds. See Appeal of Kelly, 129 N.H. 462, 465 (1987). After a review of the record, we are not persuaded that Sam’s Club used the improper return as independent grounds for Motuzas’ termination. The record clearly indicates that Motuzas was discharged because of her perceived complicity in the television theft. Indeed, Sam’s Club operated under such a theory until it responded to Motuzas’ closing statements at the final de novo hearing. As the tribunal found, however, there was no evidence that Motuzas was involved in the television theft. After a review of the record, we cannot help but reach the same conclusion.


VOTING RIGHTS

Request of the Senate
No. 2009-251
  • Whether Part I, Article 11 of the State Constitution, as we interpreted it in Voting Age I, conflicts with the associational rights guaranteed to political parties by Part I, Article 32 of the State Constitution and the First and Fourteenth Amendments to the Federal Constitution in that it precludes the State from allowing political parties to invite unqualified voters to vote in primary elections; and (2) whether Part I, Article 32 of the State Constitution is less protective of the associational rights of political parties than are the First and Fourteenth Amendments to the Federal Constitution such that, under the Supremacy Clause, the first and Fourteenth Amendments take precedence.
We answer both questions in the negative. We agree with Justice Stewart’s analysis in Oregon v. Mitchell, 400 U.S. 112, 294-295 (1970), that it would be futile to use strict scrutiny to analyze an age qualification for voting because to answer the question under that standard would deny a State any choice at all because no State could demonstrate a compelling interest in drawing the line with respect to age at one point rather than another. Mitchell, 400 U.S. 294. WE therefore only review whether the State’s asserted regulatory interests are sufficiently weighty to justify the minimal limitation imposed upon the associational rights of political parties. See Timmons, 520 U.S. 351, 358 (1997). We conclude that political parties may be precluded from inviting unqualified voters to vote in primary elections.


INSURANCE / INSOLVENCY

In the Matter of the Liquidation of The Home Insurance Company
Merrimack Superior Court
No. 2008-407
Reversed and Remanded

Kelly A. Ayotte, attorney general (J. Christopher Marshall, attorney, on the brief), and Rackemann, Sawyer & Brewster P.C., of Boston, Massachusetts (J. David Leslie and Eric A. Smith on the brief, and Mr. Leslie orally), for the respondent.

Orr & Reno, P.A., of Concord (Lisa Snow Wade on the brief), and Morrison & Foerster LLP, of New York, New York (Gary S. Lee & a. on the brief, and Brian R. Matsui orally), for the appellee.

  • Whether RSA 402-C:34, II(b) precludes the asserted, disputed setoff.
  • The trial court erred when it ruled that CIC’s setoff was permissible.
The respondent, Roger A. Sevigny, Commissioner of Insurance of the State of New Hampshire, as liquidator of The Home Insurance Company (the liquidator), appeals an order of the Superior Court (Conboy, J.) sustaining a referee’s ruling granting a setoff claim asserted by the appellee, Century Indemnity Company (CIC), in the liquidation of The Home Insurance Company (Home).

Home is an insurance company, organized under the laws of New Hampshire, which was declared insolvent and placed in liquidation in 2003. Home II, 157 N.H. at 544. The liquidator is vested with title to and charged with administering and collecting Home’s assets for distribution to Home’s creditors. Home I, 154 N.H. at 475. All persons asserting claims against Home must file proofs of claim in the New Hampshire liquidation proceeding. CIC is an insurance company organized under the laws of Pennsylvania, which reinsures Home with respect to certain contracts between Home and other insurers. Home II, 157 N.H. at 544-45. As claims under these contracts are allowed against Home in liquidation, CIC remits funds to Home pursuant to an agreed-upon claims protocol. Id. at 545. This means that for the purposes of the liquidation proceeding, CIC is a debtor of Home. The claims protocol provides that these payments "shall be net of set off in compliance with" RSA 402-C:34 (2006), or as otherwise allowed under New Hampshire law. Id. In addition to being a reinsurer of Home, CIC is a co-insurer with Home of Pacific Energy Company (PECO), meaning that both CIC and Home are primary insurers of PECO.

The disputed setoff claim arose in connection with a 2005 confidential settlement agreement between PECO and CIC to which Home was not a party. Under this agreement, governed by Pennsylvania law, CIC paid PECO $13 million to settle certain environmental coverage claims and agreed, among other things, not to "seek indemnification for, reimbursement of, contribution toward or subrogation rights concerning" amounts it paid under the agreement from "any other insurer or alleged insurer of PECO." The liquidator disagreed with the validity of the asserted setoff and the parties jointly requested that the referee deem the matter a disputed claim proceeding to be resolved in accordance with RSA chapter 402-C and an established claim procedure order. See Home II, 157 N.H. at 546. The referee granted the setoff. The trial court sustained this decision, and this appeal followed.

In this case, as the liquidator concedes, had CIC not agreed in 2005 to not seek contribution against Home, it could have done so and asserted its contribution claim as a setoff under RSA 402-C:34. The problem here is that not only did CIC agree in 2005 not to assert a contribution claim against Home, but also, in 2007, it paid PECO money to be relieved of this agreement. Such conduct falls within one of the statutorily created exceptions to the setoff mandate, broadly construed.


ZONING

Robert Farrar v. City of Keene
Cheshire Superior Court
No. 2008-500
Reverse in Part, Affirm in Part and Remand

Hoppock & Lachman, PLLC, of Keene (Joseph S. Hoppock on the brief and orally), for the petitioners.

Leon I. Goodwin, III, assistant city attorney, and Thomas P. Mullins, city attorney, by brief, and Mr. Goodwin orally, for the respondent.

Bradley & Faulkner, P.C., of Keene (Gary J. Kinyon on the brief and orally), for the intervenor.


  • Whether the Superior Court erred when it: (1) overlooked evidence of unnecessary hardship, specifically the large size of the house, the lot size compared with the number of available parking spaces and the unusual layout of the district; (2) failing to give deference to the ZBA decision and the ZBA members’ use of their own personal knowledge; and (3) failing to remand to the ZBA.
  • In close cases, where some evidence in the record supports the ZBA’s decision, the superior court must afford deference to the ZBA. See Garrison v. Town of Henniker, 154 N.H. 26, 29 (2006) (superior court’s review in zoning cases is limited). Here, the superior court did not give such deference to the local board. We thus conclude that the superior court erred in ruling that the record does not support the ZBA’s finding of unnecessary hardship.
The intervenor, Peter Hill, and the respondent, the City of Keene, appeal the decision of the Superior Court (Arnold, J.) vacating the decision of the City of Keene Zoning Board of Adjustment (ZBA). The petitioners, Robert Farrar and Jeananne Farrar, cross-appeal. Hill applied for use and area variances for his property. The property at issue is located in the office district.

As to the area variance, Hill requested permission to reduce the number of required onsite parking spaces from twenty-three to ten. The ZBA partially granted Hill’s request, decreasing the number of required parking spaces to fourteen. As to the use variance, Hill proposed changing the use from a residential single family dwelling to a mixed use with two residential units and office space. The office district permits both multifamily and office uses, but does not expressly permit mixed use. The ZBA granted Hill’s request for a use variance. The Farrars, abutters to the property, moved for rehearing, arguing that the vice chairperson had a conflict of interest and the ZBA erred in granting both variances. The ZBA denied the motion. The Farrars appealed to the superior court.

The superior court found no conflict of interest and affirmed the ZBA’s decision on the area variance, but vacated the use variance. As to the latter, the superior court found that Hill failed to submit evidence as to the first prong of the unnecessary hardship test—that the zoning restriction as applied interferes with his reasonable use of the property considering its unique setting in the environment. As to the remaining criteria of the variance standard, the superior court held that the record supported the ZBA’s findings that Hill met his burden.


PUBLIC UTILITY


Appeal of Verizon New England, Inc. d/b/a Verizon New Hampshire
Public Utitlity Commission
No. 2008-645
Reversed

Orr & Reno, P.A., of Concord (Susan S. Geiger on the joint brief and orally), for the petitioner, Freedom Ring Communications, LLC d/b/a BayRing Communications, and intervenor One Communications.

Hinckley, Allen & Snyder, LLP, of Concord (Daniel M. Deschenes on the joint brief), and Jay E. Gruber, of Boston, Massachusetts, on the joint brief and orally, for intervenor AT&T Corporation.

Munger, Tolles & Olson, LLP, of Los Angeles, California (Henry Weissmann on the joint brief and orally), and McLane, Graf, Raulerson & Middleton, P.A., of Portsmouth (Sarah B. Knowlton on the joint brief), and Alexander W. Moore, of Boston, Massachusetts, on the joint brief, for respondent Verizon New England, Inc. d/b/a Verizon New Hampshire.

Devine, Millimet & Branch, P.A., of Concord (Frederick J. Coolbroth & a. on the joint brief), for respondent Northern New England Telephone Operations LLC d/b/a FairPoint Communications - NNE.
  • Whether Tariff No. 85 allows Verizon to impose a carrier common line access charge for calls that do not traverse Verizon’s common line.
  • Here, it is undisputed that Verizon provided local switching and local transport with respect to the calls at issue, and that local switching and local transport are part of switched access service. Accordingly, under the plain language of Tariff No. 85, it was permissible for Verizon to assess the carrier common line access charge to the local switching and local transport services it provided in connection with the calls at issue. Because we find the tariff’s language to be plain and unambiguous, we will not look beyond it to determine its intent.
The respondents, Verizon New England, Inc. d/b/a Verizon New Hampshire (Verizon) and Northern New England Telephone Operations d/b/a FairPoint Communications – NNE (FairPoint), appeal a decision of the New Hampshire Public Utilities Commission (PUC) mandating that they cease billing other carriers for certain charges. At issue is the PUC’s interpretation of NHPUC Tariff No. 85, Tariff No. 85 is one of several tariffs that apply to the services that were formerly offered by Verizon and are now offered by FairPoint. For ease of reference, this opinion will refer to Verizon and FairPoint, collectively, as Verizon.

The dispute in this case is about a charge that Verizon has required petitioner Freedom Ring Communications, LLC d/b/a BayRing Communications (BayRing), intervenor One Communications, and intervenor AT&T Corporation (collectively, the petitioners), to pay. The petitioners are competitor telephone companies that use Verizon’s network to provide telephone services in New Hampshire. See Tariff No. 85, supra section 2.1.1. access charge only for calls that are transmitted over Verizon’s common line.

As the calls at issue were not transmitted over Verizon’s common line, the petitioners assert that it was error for Verizon to impose the carrier common line access charge upon these calls. Verizon counters that it was allowed to impose the carrier common line access charge for calls that did not traverse its common line because, under the tariff, this charge applies to each aspect of "switched access service" that Verizon provided and it is undisputed that Verizon provided "local switching" and "local transport," two of the three aspects of "switched access service" in connection with the calls at issue.

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