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Bar News - August 16, 2002 NH Supreme Court Opinion Summaries OBSTRUCTING GOVERNMENT ADMINISTRATION NADEAU, J. The defendants appealed their convictions on charges of obstructing government administration. The supreme court affirmed. An on-duty New Hampshire Fish and Game Department officer was shining fields to check for deer or illegal activity. After shining fields owned by the defendants, one of the defendants told the officer that he was destroying crops. An argument ensued over whether the officer had the right to be there. Subsequently the defendants blocked the officer’s truck, preventing him from leaving. The officer called for police assistance. The responding police officer ordered one of the defendants to move the vehicle blocking the Fish and Game officer’s truck. When the defendant refused, the police officer requested back-up assistance. The defendants were taken into custody and charged with obstructing government administration under RSA 642:1. The supreme court stated that there was sufficient evidence to find that the defendants’ conscious object was to prevent the officer who was performing an official function from leaving the field. The court concluded that there was sufficient evidence to find that the defendants acted purposely. The court could not conclude that no rational trier of fact could have found beyond a reasonable doubt that the officer was performing an official function, and concluded that the officer was still performing the function when trying to leave the field. The court rejected that RSA 642:1 is unconstitutionally overbroad, and further rejected the defendants’ alternative argument that the court should carve out an exception to the crime of obstructing government administration when the defendant believes the public servant has committed or is committing a crime. The court stated that a property owner may take reasonable measures to determine whether a person is on their land lawfully, and whether they have caused damage. A landowner may not, however, interfere with an officer’s official functions.
CONSPIRACY TO DISTRIBUTE ILLEGAL DRUGS – ENTRAPMENT – JURY INSTRUCTION BRODERICK, J. The defendant appealed her conviction for conspiring to distribute cocaine. Regarding her entrapment defense, the defendant argued that she was entitled to a more favorable jury instruction than that given by the trial court. The supreme court affirmed. A confidential informant for the New Hampshire Drug Task Force (task force) asked several times to buy cocaine from the defendant. The defendant declined the requests initially, but later agreed. The informant and a task force undercover agent went to the defendant’s house to buy cocaine. By contacting a drug dealer, the defendant assisted in, arranged for, and participated in selling cocaine to the agent on several occasions. The defendant was arrested and charged with selling cocaine and conspiring to sell cocaine. At trial, the defendant asserted an affirmative defense of entrapment, see RSA 626:5 (1996), and argued that coercion by the task force and its informant caused her to commit criminal acts to which she was not predisposed. The jury, during deliberations, asked a question as to whether entrapment was an umbrella defense and whether a finding of entrapment on one offense carried through all offenses. In chambers, the State argued that each indictment in a series of criminal charges must be considered separately, when considering an entrapment defense. The defendant argued that if the first offense in the series was the result of entrapment, then any subsequent offenses were the product of the initial entrapment. The trial court instructed the jury to consider each indictment separately. The jury deadlocked on two charges, convicted the defendant on one conspiracy to sell charge, and acquitted her on another conspiracy charge. The defendant argued on appeal that the jury instruction should have been more favorable – that if the jury found her entrapped regarding the first offense then it should find her entrapped in any subsequent offense. The supreme court declined to adopt a theory of continuing entrapment, and did not interpret RSA 626:5 as requiring a continuing entrapment or presumption of continuing entrapment. The court stated that the entrapment defense applied to a singular crime, and did not preclude finding entrapment on subsequent crimes, based on a plain language reading of the statute as well as common sense. The supreme court stated that the jury instruction given by the trial court was more generous than necessary, and that reversal was unwarranted. FIRST DEGREE MURDER – MOTION TO SUPPRESS – RIGHT TO COUNSEL – RECUSAL DALIANIS, J. The defendant appealed the trial court’s first degree murder conviction under RSA 630:1-a, 1(a) (1996). He argued that the trial court erred by: (1) denying his motion to suppress statements he made to police; and (2) by denying his motion for recusal. The supreme court affirmed. Following a murder in Salem, the Salem Police Department presented an arrest warrant and a sworn complaint to the Salem District Court. The complaint charged the defendant with hindering apprehension. The court found probable cause, signed the complaint, and issued an arrest warrant. The defendant was arrested and interviewed in Michigan. He was advised of and waived his Miranda rights. During two exchanges in which the defendant denied involvement in the murder and indicated he had nothing else to tell the detective, the defendant answered further questions. At an extradition hearing in Michigan, the defendant was charged with hindering apprehension on a fugitive warrant. He re quested an attorney for the extradition hearing. A Salem detective, believing that the defendant was confused regarding his rights, clarified that the defendant had a right to counsel even if he returned to New Hampshire. The defendant waived extradition, waived his Miranda rights, and was interviewed in Michigan by two Salem detectives. The State filed the hindering apprehension complaint with the Salem District Court. The defendant was indicted for first degree murder. Prior to trial, the State moved to amend the charge to second degree murder, to which the defendant entered a guilty plea, with a negotiated sentence of thirty-five years to life. The trial judge rejected the negotiated plea. The defendant withdrew his plea. The court then withdrew the amended charge, and reinstated the first degree murder charge. Using a state constitution analysis, the supreme court reviewed the evidence regarding the defendant’s Miranda rights in the light most favorable to the State. The court, recognizing that the police must honor an invocation of a right to remain silent, considered whether the defendant actually invoked his right. Based on the transcript, the court held that the defendant did not invoke his right to remain silent. The defendant’s argument that he was deprived of his right to counsel because the trial court did not suppress statements made during the interview was also rejected by the supreme court. The signing of a complaint has not been held to be an adversarial judicial proceeding, and therefore the right to counsel did not attach for the purpose of the interviews. The court also held that the right to assistance of counsel did not attach at the extradition hearing. With respect to the defendant’s argument that the trial court erred in denying his motion for recusal, the supreme court ruled that the defendant did not make a showing of bias. The court determined that rejecting the negotiated plea and sentence was a legitimate exercise of the trial judge’s discretion, and that a reasonable person would not question the trial judge’s impartiality.
COLLECTIVE BARGAINING DALIANIS, J. The petitioner, City of Laconia (city), appealed a decision of the New Hampshire Public Employee Labor Relations Board (PELRB) denying its petition to modify the fire department’s collective bargaining unit to exclude lieutenants and captains. See RSA 541:6 (1997). The supreme court affirmed in part, vacated in part, and remanded. The city has recognized the union as the exclusive representative of employees within a bargaining unit including lieutenants, captains, and firefighters. The PELRB certified the union as the exclusive representative for this bargaining unit, pursuant to the enactment of RSA chapter 273-A. The city petitioned the PELRB to modify the bargaining unit to exclude lieutenants and captains, arguing that: (1) they were supervisory employees exercising a significant amount of discretion, and thus, under RSA 273-A:8, II (1999), could not belong to the same unit as firefighters; and alternatively, (2) circumstances had changed since the initial certification. See N.H. Admin. Rules, Pub 302.05(a). Assessing the duties of the lieutenants and captains, the PELRB dismissed the petition, ruling that there was not a "meaningful" change since formation of the bargaining unit. On appeal, the city argued that PELRB’s decision is unjust and unreasonable because it permits lieutenants, captains, and firefighters to belong to the same bargaining unit, violating RSA 273-A:8, II. The city asserted that lieutenants and captains are supervisors who prepare evaluations, initiate discipline, and oversee operations. The union countered that the city cannot challenge the bargaining unit composition, under the doctrine of laches. The city argued in the alternative that the PELRB erroneously found that written evaluations, as opposed to oral, were not a material change warranting modification to the bargaining unit. The supreme court declined to address the city’s primary arguments because the PELRB did not address them; thus, the court had insufficient rulings on which to base a review. The court remanded the case to determine: (1) whether lieutenants and captains are supervisors pursuant to the statute; (2) if the lieutenants and captains are supervisors, whether it is permissible to include them in the same bargaining unit as firefighters; and (3) whether the city is barred from challenging the composition of the bargaining unit. The supreme court disagreed with the city’s alternative argument, supported the PELRB’s finding, and stated that the PELRB’s conclusion regarding the written evaluations was supported by the record.
MARITAL ASSETS – ALIMONY – DIVORCE DALIANIS, J. The defendant, Joseph M. DeMauro, appealed a divorce order awarding the plaintiff, among other things, thirty-five million dollars in marital assets and alimony of twenty thousand dollars per month. He argued that the superior court relied on remote and speculative evidence in valuing marital assets, and erred in its valuation. The plaintiff moved to dismiss the appeal on the ground that the defendant remained in contempt of superior court orders related to the divorce action. The supreme court dismissed the defendant’s appeal. The supreme court held in a prior case (DeMauro I) that the defendant had a right to assert his privilege against self-incrimination relative to certain financial questions, but did not allow him to assert the privilege to prevent resolving civil issues or issues with the plaintiff. The trial court, on remand, ordered the defendant to produce certain records and authorizations regarding his assets but the defendant failed to obey the order. Thus, an appointed receiver was unable to verify many assets. The plaintiff was thus allowed to introduce historical data and financial projections, based upon bank records held by the plaintiff. The trial court found the defendant in contempt and awarded the plaintiff alimony and an equitable division of the marital assets. The defendant argued on appeal that the trial court’s valuation was erroneous, and that he was penalized for exercising his right to remain silent. The plaintiff argued that the defendant was in contempt of court orders regarding support and financial records. As a question of first impression, the supreme court considered whether an appellate court may dismiss a civil appeal when the appellant is in contempt of a trial court order. The court held that in limited circumstances, an appeal in a civil case may be dismissed if the appellant has failed to comply with a trial court order that relates directly to the issues raised by the appellant on appeal, and the issue of contempt is not being appealed. The court emphasized that this decision would not prevent a party found in contempt from appealing the contempt ruling and the merits of the underlying case. The court found that the defendant could have prevented the outcome of the divorce decree by providing required information. The supreme court stated it would not permit the defendant to refuse the orders of the judicial process while seeking its assistance, concluded that the defendant forfeited the right to appellate review on the merits of the case, and dismissed the appeal.
DISBARMENT – MITIGATING FACTORS – CLIENT TRUST ACCOUNT DALIANIS, J. The Supreme Court Committee on Professional Conduct petitioned to disbar the respondent, Michael J. Farley. A judicial referee found by clear and convincing evidence that the respondent violated New Hampshire Rules of Professional Conduct and recommended disbarment. The respondent conceded to the conduct and violations, but argued that mitigating factors justified a less severe sanction than disbarment. A court suspended the respondent from practice and enjoined him from disposing or conveying any client assets. Soon after, the respondent wrote checks payable to himself. The court froze the respondent’s client trust account and ordered an audit by a certified public accountant. The audit could not be completed, because the respondent would not provide the records. The accountant did find, however, that when the account was frozen, it was out of trust by more than three thousand dollars. The respondent admitted, in a meeting of the office of the New Hampshire Attorney General, that he was conducting improper recordkeeping and withdrawals. The respondent argued that a lesser sanction than disbarment was appropriate because he was clinically depressed and had no dishonest intent. The supreme court considered the mitigating factors, but noted the importance of protecting the public. The court ordered disbarment on all of the violations charged.
PETITION TO TERMINATE GUARDIANSHIP – APPOINTMENT OF COUNSEL – DUE PROCESS RIGHTS BRODERICK, J. The petitioner appealed from a probate court decision denying her request for appointment of counsel in her petition to terminate guardianship over her daughter and an associated motion for contempt or to compel. The supreme court affirmed. After the petitioner’s daughter was placed with guardians, she sought treatment for certain disorders. The petitioner then filed to terminate the guardianship. The probate court ordered the petitioner to produce certain records, but she did not comply. In response, the guardians filed a motion for contempt, or alternatively, to compel production. The petitioner then filed a motion for appointment of counsel, which the probate court denied. With regard to the due process claim, the court relied on the State Constitution, and used a three-prong balancing test to determine whether the appointment of counsel was mandated in this case. Agreeing with the petitioner that the right to raise and care for one’s children is a fundamental liberty interest, the court stated that the liberty interest is less substantial in a proceeding to terminate a guardianship. The initial guardianship proceeding had already limited the petitioner’s rights to the care, custody, and control of her daughter; and no further risks were imposed at the subsequent proceeding. The court held that the State Constitution does not require that counsel be appointed to represent the petitioner. Because of the supreme court’s conclusion that appointed counsel was not required, the court declined to address the petitioner’s contention that the probate court abused its discretion by failing to consider the appropriate test. The court noted, however, the obviousness of the probate court’s application of the proper test and could not say that its conclusions reflected an unsustainable exercise of discretion. The supreme court disagreed with the petitioner’s argument that the probate court failed to consider her request for appointed counsel under its discretionary authority, stating that the record revealed that the probate judge questioned the petitioner’s counsel. Consequently, the supreme court found that the petitioner failed to meet her burden regarding an unsustainable exercise of discretion.
PUBLIC ENTITIES – ADMINISTRATIVE RULES – STATUTORY AUTHORITY – SUMMARY JUDGMENT DUGGAN, J. The plaintiffs appealed from an order of the superior court granting summary judgment to the New Hampshire Department of Resources and Economic Development (DRED. The court denied the plaintiffs’ request to declare that the defendants acted illegally in permitting the erection of 180-foot telecommunication tower on the summit of Mt. Kearsarge and refused to order removal of the tower. The supreme court affirmed. The State installed a police radio communication antenna, and several public entities installed towers and communication facilities near the summit of Mt. Kearsarge, on State owned land. The State later adopted a statement of policy that protected the existing and future communications interests of the State. Subsequently adopted administrative rules incorporated much of the policy statement and explained how applications from private agencies would be considered. DRED then adopted a new policy regarding building communication facilities on State-owned mountaintops, which designated sixteen mountains, including Mt. Kearsarge, where communication facilities would be allowed, and barred private users from installing communication facilities on State-owned mountaintops. A revised policy increased the number of mountains to seventeen and allowed new private users to build communication facilities on State-owned mountaintops if the private user met certain criteria. U.S. Cellular applied to DRED to put communication equipment on Mt. Kearsarge, and agreed to construct a new tower according to the Department of Safety’s (DOS) requirements and to donate the tower to the State upon completion. DRED and U.S. Cellular entered into a five-year lease for construction of the tower. Following completion of the tower, the plaintiffs, property owners facing Mt. Kearsarge and others, petitioned the superior court for injunctive relief alleging that: (1) DRED exceeded its statutory authority; and (2) DRED was required to adopt rules under RSA 227-G:4 (2000). Both the plaintiffs and the defendant sought summary judgment. Granting the defendants’ motion, the superior court ruled that DRED acted pursuant to statutory authority in contracting for the tower to be erected, pursuant to RSA 227-H:9, and therefore, that a rule was not necessary. The plaintiffs appealed. The supreme court agreed with the plaintiffs that, because RSA 27-H:9 has neither a clear mandate nor detail, DRED was required to make rules. Even so, the court held that DRED’s authority to make contracts for the leasing of privileges and concessions remained. The plaintiffs also argued that DRED lacked authority to enter into the lease agreement because it did not promulgate rules and asserted that they suffered injury. Yet, the plaintiffs failed to explain any specific harm. The court found, therefore, that DRED’s actions were valid. The court also addressed the plaintiff’s argument that DRED’s policy was a de facto rule, and stated that even so, DRED had statutory authority to enter into the lease agreement.
COMMERCIAL GENERAL LIABILITY INSURANCE DUGGAN, J. The defendant, Acadia Insurance Company (Acadia), appealed a superior court order granting summary judgment in favor of the plaintiff, Pro Con Construction, Inc. (Pro Con). The supreme court reversed and remanded. Pro Con subcontracted interior painting on a construction project to Decorative Concepts, which carried a commercial general liability policy issued by Acadia. The policy contained an endorsement stating that additional insureds on the policy only pertained to liability "arising out of" ongoing operations performed for that insured. A Decorative Concepts employee slipped and fell on an icy sidewalk while going from his work area to a coffee truck, and was allegedly injured. The employee and his wife brought suit against Pro Con. Pro Con requested indemnification under the Acadia policy. Acadia asserted Pro Con was not covered under the circumstances of the employee’s claim. Pro Con petitioned for declaratory judgment in superior court as to coverage. The superior court granted Pro Con’s motion for summary judgment, stating that the policy would cover the employee’s claim, and denied Acadia’s motion for summary judgment. Acadia appealed. The supreme court looked to the plain and ordinary meaning of the policy’s words, especially the endorsement wording regarding the additional insured. The court used a longstanding interpretation of "arising out of" to determine that at least some causal nexus must link Decorative Concepts’ ongoing operations with the injuries in order for the endorsement to provide coverage. The court found that the injuries did not occur while the employee was performing a task associated with the painting tasks, and thus that there was no causal nexus. Rejecting Pro Con’s contention that the policy could reasonably be interpreted using a "but for" analysis, the court reversed the trial court’s grant of summary judgment in favor of Pro Con. Justice Nadeau dissented, indicating that he agreed that there needed to be a causal connection between the ongoing operations and the injuries, but found that the facts satisfied the test.
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