 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 
|
|
 |
||||||||||||||||
|
Bar News - October 4, 2002 NH Supreme Court Opinion Summaries REAL ESTATE TAX NADEAU, J. The plaintiff appealed the dismissal of her petition for the abatement of real estate tax by the board of tax and land appeals (BTLA). The supreme court affirmed. The plaintiff, who believed her land to be in the Town of Barnstead, petitioned the BTLA for the abatement of a real estate tax levied by the Town of Strafford. Ruling that it lacked jurisdiction to determine boundary lines, the BTLA granted Strafford's motion to dismiss. To allow the plaintiff to petition the superior court for resolution of the boundary line dispute, the BTLA stayed its order of dismissal. The superior court dismissed the plaintiff's petition, and held that under RSA 51:7 (Supp. 1998) it had jurisdiction to decide municipal boundaries only when the selectmen of those towns disagreed as to their joint boundary. With the selectmen in agreement over the boundaries, the trial court ruled it had no subject matter jurisdiction. Following the superior court's order, the legislature amended the statute to give the BTLA concurrent jurisdiction with the superior court. The BTLA then lifted its stay order finding that, in absence of a dispute between the adjoining towns' selectmen, the amendment did not give it authority to decide boundary disputes. The supreme court rejected the plaintiff's argument that the BTLA had jurisdiction to decide boundary disputes initiated by any aggrieved party. Before RSA 51:7 was amended, an aggrieved taxpayer could appeal an abatement denial either to the BTLA, see RSA 76:16-a, or to the superior court, see RSA 76:17 (Supp. 2001). Even so, only the superior court could decide boundary disputes when the selectmen disagreed. Although the supreme court stated that the amendment (RSA 51:7, II) grants the BTLA and the superior court concurrent jurisdiction in boundary disputes, it explained that RSA 51:7, I limits the superior court's jurisdiction to cases in which selectmen disagree about their towns' boundaries. Thus, while the amendment allows a taxpayer with a boundary dispute to appeal to the BTLA, the BTLA's jurisdiction is likewise limited. SEARCH AND SEIZURE - PROTECTIVE CUSTODY BROCK, C.J. The defendant appealed his conviction of possession of a narcotic drug. The supreme court vacated and remanded. A Concord Police Department officer responded to an incident in which the defendant's actions led the officer to believe the defendant was under the influence of an intoxicating substance. The officer took the defendant into protective custody, handcuffed him, patted him down, and searched a bag in his possession. In the bag, the officer found a tube and pipe which possibly contained cocaine residue. After an indictment of one count of possession of cocaine, the defendant moved to suppress the contents of the bag. First, the defendant asserted that the officer exceeded the permissible scope of a search under RSA 172-B:3. An amendment to the motion asserted that without evidence that the defendant was under the influence of alcohol, the officer did not have the authority to take the defendant into custody pursuant to RSA 172-B:3. The trial court denied the motion to suppress and concluded that the State's taking the defendant into protective custody was a constitutional seizure within the scope of RSA 172-B:3. Regarding the defendant's assertion that RSA 172-B:3 does not authorize the police to take a person intoxicated by drugs into protective custody, the supreme court found that the plain language of the statute does not authorize the police to take individuals into custody if, in the police officer's judgment, the individual is under the influence of drugs. On remand, the court stated that issue for the trial court's consideration was whether the officer thought the defendant was intoxicated by alcohol, rather than whether the defendant actually was intoxicated by alcohol. RSA 172-B:3, I. The court did not address the State's "community caretaking" exception to the warrant requirement, and allowed the trial court to consider the exception if the trial court concluded that the statute did not apply. PRO SE MOTIONS BROCK, C.J. The defendant appealed the superior court's denial of his pro se motions. The supreme court affirmed. Following the defendant's jury conviction for aggravated felonious sexual assault and kidnapping (See RSA 632-A:2, I(a) (1996); RSA 633:1, I (1996)), the supreme court affirmed the conviction and remanded to the superior court for resentencing. On remand, the defendant filed a series of pro se motions requesting to vacate his sentence, secure a new trial, dismiss the kidnapping indictments, and set aside the jury verdicts. Because the defendant was represented by counsel, the superior court declined to address the merits of the motions and rejected the motions without prejudice. The supreme court ruled that the trial court's decision was a sustainable exercise of its discretion. Although the court recognized the defendant's constitutional right to counsel or the right to proceed pro se, it stated that the defendant was not entitled to both. Therefore, the court declined to address the merits of the pro se motions on appeal. AGGRAVATED DRIVING OF AN OFF-HIGHWAY VEHICLE WHILE INTOXICATED DUGGAN, J. The defendant appealed his conviction for aggravated driving of an off-highway recreational vehicle while intoxicated (OHRV-DWI). The supreme court affirmed. An indictment charged the defendant with negligent homicide, RSA 630:3, II (1996), alleging he caused the death of another person while operating a Jeep under the influence of intoxicating liquor. Because a previous administrative license suspension (ALS) hearing determined that there was insufficient evidence of the defendant's intoxication at the time of the incident, the defendant moved in limine to exclude certain evidence regarding his blood alcohol level, claiming collateral estoppel. The trial court denied the motion. The trial court also denied the defendant's motion for a directed verdict of acquittal on the ground that there was insufficient evidence to establish that the defendant's intoxication caused the accident. On the defendant's first issue, the supreme court declined to decide whether OHRV-DWI is a lesser-included offense of negligent homicide because the issue was not properly preserved for review. The court next addressed the defendant's concerns about the timing of the State's request for a jury instruction on the lesser-included offense of aggravated OHRV-DWI, and concluded that the defendant's argument was unfounded because the initial request for jury instructions of a lesser-included offense typically cannot occur until the close of the evidence presented at trial. Regarding the defendant's contention that the trial court erred by denying his motion for a directed verdict on the negligent homicide indictment, the court declined to address the issue since the defendant was not convicted on that charge. The supreme court upheld the trial court's refusal of a judgment notwithstanding the verdict on the charge of aggravated OHRV-DWI, because the defendant did not contest the sufficiency of the evidence on the statutory elements of the offense. See RSA 215-A:11, II(a)(1). Refusing to apply the doctrine of collateral estoppel to a criminal proceeding following a civil ALS hearing, the supreme court upheld the trial court's decision to deny the defendant's motion in limine. RECKLESS MANSLAUGHTER BROCK, C.J. The defendant appealed his conviction for reckless manslaughter. The supreme court affirmed. After an argument, the defendant stabbed and killed a cohabitant of his apartment. The defendant requested a jury instruction based on RSA 627:4, II(d) which would allow a person to use deadly force against another person in his dwelling, including a cohabitant, if the other person was using unlawful force to commit a felony. The State contended that RSA 627:4, II(d) does not justify using deadly force against a cohabitant. After the trial court rejected the proposed jury instruction, the defendant was convicted of reckless manslaughter for the stabbing death of his roommate. See RSA 630:2, I(b) (1996). Upon review of the statutory language and legislative history of the pertinent statutes, the supreme court rejected the defendant's argument and held that the defense of premises statute, RSA 627:4, II(d), permits a person to use deadly force if the person reasonably believes that a person who has unlawfully entered the dwelling intends to use unlawful force against the person to commit a felony against the person in the dwelling, whether or not the person believes the intruder is going to use deadly force. The court reasoned that the "defense of dwelling" exception to the general rule - that the force used in response to threat should be proportionate - is based on the premise that the dwelling is being protected from an intruder, and does not apply where the assailant is a cohabitant. The court held that RSA 627:4, II(d) does not justify the use of deadly force against an assailant when the assailant is a cohabitant of the home, and concluded that the defendant was not entitled to the requested jury instruction. ZONING ORDINANCE - ZONING BOARD OF ADJUSTMENT BROCK, C.J. The plaintiff purchased land in Rye in a residential sub-division. The plaintiff's lot complied with the town's square footage and frontage requirements for residential requirements at the time that the subdivision plan was approved and recorded in the registry. A change in the town's square footage and frontage requirements rendered the plaintiff's lot nonconforming. The plaintiff's application for a variance was denied by the ZBA. Claiming that the parcel was grandfathered, and therefore did not require a variance, the plaintiff then applied for a building permit. A building inspector denied the plaintiff's application, stating that a variance was required. On appeal, the plaintiff contested the superior court orders declaring section 601 of the Rye Zoning Ordinance valid on its face and as applied to his property. He also appealed the Town of Rye Zoning Board of Adjustment's (ZBA) decision not to hear his revised application for approval to build a house on his lot. The Town of Rye (town) cross-appealed, arguing that the plaintiff's action should have been dismissed because the plaintiff failed to timely appeal adverse decisions of the ZBA. The supreme court vacated and remanded. The town argued that because the plaintiff failed to appeal the ZBA's decisions pursuant to RSA 677:4, the decisions are final decisions, and the defendant's constitutional claims are barred by the doctrine of res judicata. The supreme court was not persuaded by the town's argument and concluded that the plaintiff's claims were not barred by res judicata. Regarding the plaintiff's argument that the variance requirement in section 601 is facially unconstitutional, the court agreed with the trial court that section 601 is not unconstitutional on its face. As to whether the ordinance is unconstitutional as applied to the plaintiff's property, the court noted that property owners generally have no vested right to be free from zoning restrictions that forbid prospective uses. The court disagreed with the trial court's analysis as to whether the plaintiff had a vested right to build on the property without obtaining a variance, stating that the analysis should have focused on: 1) whether the original developer had acquired a vested right to build on the lot; and 2) whether that vested right transferred to the plaintiff, as a successor in interest. The court also concluded that the superior court erred when it ruled that there was no material change between the plaintiff's first and second applications and that it was premature for it to find that the plaintiff would never be entitled to build a single family home on the property. WHISTLEBLOWERS' PROTECTION ACT BROCK, C.J. The petitioner appealed the decision of the New Hampshire Department of Labor (DOL) dismissing his claim that his employer, Fred Fuller Oil Company, Inc. (Fuller Oil), violated the Whisteblowers' Protection Act (Act). See RSA 275-E:2 (1999). The DOL ruled that Leonard did not report a violation of law within the meaning of the Act and failed to satisfy the requirements of RSA 275-E:4 (1999). The supreme court reversed and remanded. In Appeal of Fred Fuller Oil Co., Inc., 144, N.H. 607 (2000), in which the facts for this case can be found, the supreme court clarified the standard for reporting a violation under RSA 275-E:2, I (a), vacated the decision of the DOL, and remanded for further proceedings. On remand, the DOL found that: (1) based on the conversation between Fred Fuller and Leonard, a reasonable employer would not have considered Leonard's complaint as " ' blowing the whistle' on [Fuller Oil]" because it made Sunday a mandatory work day; and (2) Leonard failed to satisfy the requirements of RSA 275-E:4, by not availing himself of Fuller Oil's "open door policy." The DOL also found that Leonard actually quit his employment and therefore was not discharged by Fuller Oil. On appeal, the supreme court found that Leonard's complaint constituted a report of an alleged violation of RSA 275:33 within the meaning of the Act. The court disagreed with the DOL's finding that Leonard failed to avail himself of Fuller Oil's alleged open door policy. The court found that the record demonstrated that Fuller Oil wanted the employee's grievances regarding the mandate to work on Sunday to be addressed to Fred Fuller, and further found that Leonard made a reasonable effort to avail himself of the process. Thus, the court determined that it was unjust and unreasonable to charge Leonard with failing to do anything more.
|
|
Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store New Hampshire Bar Association |
