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Bar Journal - Spring 2004

The Civil Bureau: Soup to Nuts



The Civil Law Bureau ("Civil") acts as legal counsel for 114 executive branch agencies, boards, commissions and councils. There are 38 state agencies, many of which have multiple divisions with varied duties and functions. In addition to the state agencies, Civil also provides legal advice and representation to 53 licensing/regulatory boards and 23 councils/commissions. There are 13 attorneys, several of whom are part time, 2 paralegals and four secretaries. Each attorney is assigned to assist a variety of the client agencies. Although there are no real "specialists," some of the attorneys represent agencies that produce more litigation and others have clients that require more intense legal advice and assistance. For example, the Department of Administrative Services and the boards, commissions and councils require more legal advice and assistance, while the Departments of Resources and Economic Development (DRED), Safety and Corrections generate a significant amount of the bureau’s litigation.

In 1999 Civil formed a sub-unit within the bureau known affectionately as FLU (Federal Litigation Unit). The purpose of FLU is to handle the increased number of federal cases efficiently. The unit is staffed by an Associate Attorney General, who manages the unit, three (3) attorneys, a secretary and a paralegal. Although the FLU attorneys are primarily litigators, they also have client agencies they advise and represent. Like any law office, Civil handles trial and appellate court litigation for all its clients, provides legal advice and interpretation through formal written opinions, informal memos and on the telephone – frequently on a daily basis. Unlike any law office, however, Civil has no control over the amount of the work that comes through the door.1 Over the last two years, Civil defended 450 new lawsuits that were filed in state and federal courts. This is in addition to working on hundreds of other litigation matters still active from prior years. During the same time period, forty cases were settled2 and 390 cases were resolved judicially.

With the 1985 case of Tilton v. Dougherty, which limited the State’s ability to utilize the defense of sovereign/official immunity, and the increased litigation under 42 USC § 1983, which allows individuals to sue state actors in their individual capacity in federal court, the Civil Bureau has become a litigation unit rather than the legal advisor it had been in prior years. Approximately 50% of attorney time is now devoted to trial court litigation. Another 15% is appellate litigation. Civil filed a total of 63 appellate briefs in the last two years. 47 briefs were in defense of state action and five were state’s civil appeals to the New Hampshire Supreme Court. Eleven briefs were filed in the First Circuit Court of Appeals.

Providing legal advice to state agencies, boards and commissions remains an important function of Civil. An average of 200 - 300 agency advice files are opened per year. Each file represents an important legal issue posed by the client that requires significant legal research and analysis by the assigned attorney. In addition, attorneys consult with their clients informally, sometimes on a daily basis, through telephone contact or e-mail. All the executive branch agencies submit their contracts and leases to their assigned attorney for review prior to submission to Governor and Council to ensure legal sufficiency. Over the last two-year period Civil reviewed and approved close to 4000 contracts and leases – close to one thousand more than during the prior two-year period.

Civil is a dynamic and challenging place to work with new and interesting legal issues presented daily. One day an attorney may be in federal court arguing a First Amendment case, the next day in the office researching a separation of powers question or preparing a response to a petition for writ of habeas corpus filed by an inmate. The sections below describe some of the daily challenges and issues presented to Civil.

By Wynn E. Arnold, Senior Assistant Attorney General

The Civil Bureau represents licensing boards and other executive branch agencies whose statutory duties include adjudicative, prosecutorial and investigative functions. This commingling of functions is among the many unique challenges in agency representation that distinguish Civil from other bureaus of the attorney general’s office and from private law firms. Many of these agencies, including nearly all of the professional licensing boards and commissions, have no in-house legal staff and are headed by volunteer or part-time commissioners and board members, few of whom are attorneys. Some, such as the auctioneer’s board, have virtually no staff and sparse resources to hire outside consultants or investigators to assist with disciplinary proceedings, which, over the past few years have tended to become more complex and rife with aggressive advocacy. Civil Bureau attorneys advise and support many of these agencies on how to effectively and lawfully perform their statutory duties within their resource limitations.

Some of the perhaps lesser known issues in representation of adjudicative agencies include:

  • Education. Training of agency adjudicators and investigators has become an integral part of Civil Bureau activity. Over the last 5 years, attorneys from Civil and the Attorney General’s Administrative Prosecutions Unit have presented annual training seminars, of one or two day duration, for adjudicative and investigative agency personnel, covering the nuts and bolts of administrative law and procedure. The Civil Bureau has also developed guidelines for hearing officers and regularly provides training to individual agencies on an ongoing basis throughout the year.
  • Multiple hats, one head? Commingling of adjudicative, prosecutorial and investigative functions, if done improperly, can result in perceived or even actual conflicts that could taint administrative proceedings. Although it is permissible, absent actual bias, for a single agency to commingle these three functions, it may violate a respondent’s due process rights for the functions to be performed by a single individual. Appeal of the Consumer Advocate, 134 N.H. 651, 659-660 (1991).3 Sparse staffing and resources can make it difficult for agencies, especially the smaller licensing boards, to effectively segregate the three functions, while aggressively performing their duties. Agencies at times have to push the envelope to function efficiently, as the Supreme Court recognized in Appeal of Atlantic Connections, 135 N.H. 510, 514-515 (1992), holding that it was proper for the prosecuting attorneys to assist the adjudicators to reduce their oral decision to writing, because the attorneys were acting as scribes, not as decision makers. The Civil Bureau attorneys spend considerable time advising agencies on how to wend their way through this dilemma of addressing both resource limitations and fairness considerations.
  • Keeping parties who appear before agencies from initiating ex parte communications with the hearing officers. Avoidance of ex parte communications, which are prohibited in contested administrative proceedings by RSA 541-A:36, is of course vital for all judicial and quasi-judicial officers. It is a particular challenge, however, for members of professional licensing boards who must adjudicate disciplinary matters concerning their peers. Members of licensing boards are generally non-attorney volunteers who are members of the profession they regulate. They come in frequent professional contact with parties and potential parties to proceedings before their agency who may attempt to initiate conversations about those proceedings. These agency officials require particular training on how to recognize, avoid and cure ex parte communications. Civil Bureau attorneys have successfully mitigated this problem by addressing this topic in the annual agency training programs described above, with their respective assigned boards and, as needed, with parties to the proceedings and their attorneys.4
  • An ounce of prevention. . . The Civil Bureau does not wait until an agency decision is challenged before getting involved in agency proceedings. An increasing part of the bureau workload is attempting to minimize appeals, at least successful appeals, from administrative decisions by assisting agencies as needed from the earliest stages of proceedings, including in the development of notices of hearings5 and with conformance to the agencies’ rules and enabling statutes as well as the other requirements of the Administrative Procedures Act (APA) governing contested cases.6 This prophylactic work at times entails getting involved in the day-to-day operations of agencies, usually (but not always) smaller agencies, pursuant to the Attorney General’s supervisory authority under RSA 7:8, even when our assistance may not be welcome, in order to address potentially problematic acts or procedures pertaining to contested proceedings.
  • Evolving complexity of administrative proceedings. Another reason the Civil Bureau is getting more involved in agency proceedings is the increasing sophistication of practice before the agencies. Compared to the situation five years ago, more parties to contested cases are represented by counsel, there is a more sophisticated motions practice before licensing boards, hearing officers are confronted with increased demands for discovery, and proceedings are getting lengthier and more complex.
  • Agency rules. The lack of uniform rules of procedure among the various licensing boards and other adjudicative agencies prompted the legislature to enact RSA 541-A:30-a, requiring the Attorney General to promulgate model rules for adjudicative proceedings. These rules, promulgated as N.H. Admin. Rules Jus 800, have been adopted in substantial part by many adjudicative agencies and are adopted on a case-by-case basis as needed by those agencies that have not yet adopted them. The Civil Bureau assists its client agencies in enhancing the uniformity and comprehensiveness of the state’s procedural rules so that practice before the various agencies is not unreasonably encumbered by inadequate and differing standards. These efforts have facilitated public participation in and enhanced the fairness and efficiency of the affected administrative proceedings.
  • Legislative relations. State agencies generally pursue their legislative agendas without Attorney General involvement. However, occasionally parties before administrative agencies carry the battle to the legislature, seeking to "win" a contested proceeding by changing the law. Also, at times an agency seeks legislation to address changing regulatory needs. In such cases, Civil Bureau attorneys may assist the agencies in explaining the legal rationale for their legislative requests. Some regulatory agencies, including licensing boards, are hesitant to pursue legislation they perceive is needed to enhance public protection because of the oft demonstrated power of industry lobbyists to not only successfully oppose such proposals but to inspire amendments to the original bill that further insulate the industry from regulation rather than enhancing public protection. In such cases, the Civil Bureau, with the approval of the Attorney General, may work with the agencies, legislative committees and other stakeholders to seek common ground and to enhance legislative understanding of the agency’s position.

In conclusion, more Civil Bureau time and effort is spent representing licensing boards and other quasi-judicial agencies than most people realize. The evolving panoply of challenges not typical of years past precurses more rapid changes in the next few years.

By Ann Fitzpatrick Larney, Associate Attorney General

In 1999 a group of attorneys ("civil rights group") from several bureaus within the office began to look into whether New Hampshire had sufficient and effective laws to protect citizens against incidents of hate motivated violence. The impetus for this project came from reports by the Human Rights Commission that they were inundated with a steady stream of calls alleging discrimination and hate motivated violence from around the state. The Human Rights Commission, because of its limited jurisdiction,7 could not address a large percentage of these calls.

The "civil rights group" began the project by reviewing and analyzing New Hampshire laws, both civil and criminal, that addressed hate motivated violence. The group also reviewed laws in other jurisdictions and talked with law enforcement, advocacy and religious groups. The conclusion, not surprisingly, was that New Hampshire is not immune from acts from violence motivated by hatred or animosity towards certain personal characteristics of the victim. Although anecdotal, the Human Rights Commission and others were able to create a list of incidents based upon newspaper articles and reports from both private citizens and law enforcement agencies indicating that bias motivated acts of violence and damage to property were occurring with disturbing regulatory in New Hampshire.

The ultimate decision of the "civil rights group" was to propose a civil statute that provided for civil remedies to address hate motivated violence. The proposed statute was a logical extension of the Human Rights Commission law and the existing criminal statutes that seek to address discrimination and illegal acts motivated by bias or hatred. The goal was to have an additional tool for law enforcement to combat and deter civil rights violations.

Proposed RSA Chapter 354-B declared that all New Hampshire citizens have a right to engage in lawful activities without being threatened or subjected to violence, trespass or damage to property motivated by race, color, religion, national origin, ancestry, sexual orientation, gender or disability. The proposed act authorized the Attorney General to file a civil lawsuit in Superior Court to enjoin bias motivated conduct and to seek other appropriate civil remedies and penalties, including fines up to $5,000 for each violation. There were bipartisan sponsors for the bill, and it passed the Senate by a 23 to 2 vote. The bill came out of the House Judiciary Committee with unanimous support and was passed by the House on the consent calendar. New Hampshire Civil Right’s Act (RSA 354-B) became effective on January 1, 2000.

Prior to the effective date of the statute, the Office of the Attorney General provided statewide training on the new law for law enforcement and members of the Attorney General’s Office who volunteered to be part of an office wide group of attorneys, secretaries and paralegals who would handle civil rights cases on a rotating basis. Since January 2000, the Office has received 32 reports alleging conduct in violation of RSA 354-B. The large majority of these cases were reported to the Office by law enforcement from all parts of the state. Victims reported only a few incidents. Twelve complaints alleged threats, intimidation, name-calling, assaults and/or property damage motivated by race. Nine were motivated by sexual orientation; four, religion; and one, disability. Two complaints involved incidents that took place prior to the effective date of the statute. Eleven complaints are still pending because there are either no suspects, or not enough evidence to proceed with a court action. Seventeen complaints have been closed because one or more elements of the statute were not present. For example, there were a number of cases where racial slurs or other objectionable language was directed towards an individual’s personal characteristics/status. That alone, with out a threat or an act of violence, trespass or damage to property, does not constitute a violation of RSA 354-B.

To date, two cases have been filed in Superior Court pursuant to the Civil Rights Act. Both have involved minors in a school setting and both were reported to the Office of the Attorney General by law enforcement officers placed within the school setting. The first case, out of Somersworth High School, was filed in Strafford Superior Court in March of 2000. An African-American student was attacked in the school cafeteria by an older, Caucasian student. The older student (18 years old), who had a prior altercation with the victim’s brother, put the victim in a head-lock and told him he was going to kick his "f—ing ass." He began punching the victim in the head and face, repeatedly saying "you f—ing nigger, you f—ing monkey."

The Assistant Attorneys General assigned to the case worked closely with the Somersworth Police Department and school personnel in preparing the case for court. The police prosecutor pursued a parallel criminal action. A petition for preliminary and permanent injunction pursuant to RSA 354-B was filed within two weeks from the date that the Attorney General’s Office received the report. The petition included a proposed restraining order, a fine, which was ultimately waived, and a writing assignment, in consultation with the respondent’s school counselor, on hate crimes and their impact on society. The goal of the proposed order was to protect the victim and his family, stop the behavior and prevent any escalation of violence in the school. The court scheduled a hearing within 10 days. On the day of the hearing, the perpetrator signed a consent order which was approved by the court and was effective for three years. There were no further incidents of violence or harassment.

The second case arose out of an incident at the Dover Middle School in the fall of 2002. The victim, a 13 year old, was repeatedly assaulted while walking home from school. His attackers, four classmates at the middle school, pushed, tripped and kicked him and threw objects at him while shouting "faggot," "queer," "pussy" and "f—ing gay." This conduct continued for approximately one-half hour over a one-mile walk to the victim’s home. The Dover Police Department contacted the Attorney General’s Office for possible action under RSA 354-B. After meeting with the Dover Police Officer assigned to the middle school, school authorities, the victim and the witnesses who were also students at the middle school, the Assistant Attorneys General assigned to the case filed petitions for preliminary and permanent injunctions pursuant to RSA 354-B in Strafford County Superior Court. In addition to injunctive relief to protect the victim, the petition requested that the Court order each respondent to participate in five separate acts of community service to be determined by the Dean of Students at the middle school. The petition also asked that each respondent be ordered to compose a brief written assignment stating how each thought the victim was affected by the conduct described in the petition and what happened to each of them as a result of their con duct. The written assignment was to be sent to the Superior Court and the Attorney General’s Office for review.

At the preliminary hearing the attorneys met with the four respondents and their parents. Two of the parents reported that their sons had admitted to the conduct and were willing to sign a consent order. The parents supported that outcome; and the court approved the consent orders which are effective for three years. Two of the boys had retained counsel and opposed the requested relief. The Court, on offers of proof, granted the Attorney General’s request for a preliminary injunction. Prior to the final hearing, the third respondent agreed to the relief requested in the initial petition. One of the boys opposed the injunction and sought an evidentiary hearing.

One of the more challenging aspects of preparing this case was the age of the victim, perpetrators and witnesses. The victim and witnesses were, at times, hesitant and somewhat apprehensive about testifying in court. Despite these feelings, the three witnesses (one boy and two girls who were friends of both the victim and perpetrators) never wavered from their belief that what happened to the victim was wrong and they wanted to participate in the process of making sure it did not happen again. The victim and the witnesses were present at the preliminary hearing and they all testified at the final hearing. They were all excellent witnesses, despite some confrontational tactics by the respondent’s counsel. At the end of the hearing the Court ruled from the bench granting all the Attorney Generals’ requested relief and sua sponte, the Court ordered the respondent to pay a fine, as permitted by RSA 354-B:3. The Court spoke directly and frankly to the respondent in open court finding that the respondent had assaulted the victim based on his perception that the victim was homosexual. The Court chastised the young man for his conduct in the presence of the victim, his mother and the witnesses. This outcome was not only a positive one for the victim and the Attorney General’s Office, it also provided a group of young people the opportunity to see the legal system work for the benefit of a victim.

By Nancy J. Smith, Senior Assistant Attorney General

One of the things I like the best about New Hampshire is the contrast provided by the seasons, summer to winter and spring to fall. The same is true of the variety of litigation that is handled day-in and day-out by Civil. While Civil deals with more than the usual number of pro se filings as well as a full gamut of negligence, employment and civil rights cases, on the other end of the spectrum are the complex litigation and class action lawsuits that appear on a regular basis. This section will discuss some of the challenges of dealing with complex litigation that may be of general application or unique to Civil and provide a brief summary of some of the most significant complex litigation handled by Civil over the last twenty-five years.


When a new class action case comes in the door, Civil does not have the option of simply increasing the number of attorneys or paralegals on staff in order to deal with it. Complex litigation cases are generally assigned to the attorney who deals with the subject matter or is assigned to represent the particular state agency involved. However, as many of the class action cases are brought in federal court, at least one of the four attorneys who are part of the federal litigation unit (FLU) will be assigned. Generally, no more than two attorneys are allocated to any matter, no matter how large.

Civil has come up with some rather inventive means for dealing with the staffing demands of complex litigation. The tool most frequently used is to require that the state agency involved assign at least one person, usually agency in-house counsel, to coordinate witnesses, get documents and do the initial drafting for discovery and other requests. Sometimes the only alternative is to retain outside counsel for part of the case. Another resource that has been used to fill gaps, at least at times, has been to use volunteers and interns. Civil has been fortunate in obtaining first, second and third year law students, a few graduates awaiting bar results and occasional paralegal interns who are willing to work for the experience. We have organized group document reviews when massive document productions are required or for large redaction projects. In some instances, attorneys have been known to provide "incentives", usually chocolate, from their own pockets for any staff who participate. There has always been an incredible willingness to help out that transcends bureau lines. However, all to often, the complex cases require midnight hours and weekends of the assigned attorneys. Almost every Civil Bureau attorney who has been with the office for any length of time can tell about their own particular "the summer that wasn’t" while working on a complex case.


It is a fact of life in many of the class action lawsuits Civil defends that the state agency has all the documents and the other side has little or nothing. The single most important strategy to get in place at the beginning of a complex litigation case is a plan for organizing and indexing the documents that will inevitably be produced and generated. These have ranged from dozens of individual program recipient files to over thirty thousand pages of e-mail. When total document production is over seventy thousand pages, or even when it is less, it will be impossible to find that document that you just know you saw last month, unless the documents are indexed and page numbered. The mandatory initial disclosure requirements must also be kept in mind in federal court.8 The new federal requirements for electronic filing will also require the ability to scan exhibits for filings.9

Like many companies, the state agencies have document retention policies as well as electronic back-up policies. Increasingly, requests are made early-on in class action cases for retention of all documents and e-mail that could impact on the subject matter of the suit. This creates several challenging tasks, including making sure that the state agency understands what it has to retain, including in electronic format, making sure that the added demands on the agency information technology system is not so great that the agency will be unable to operate and that the agency understands the need to retain any back-up records made as long as the litigation is ongoing, rather than recycling back-up tapes after four, six or twelve months, as is the usual practice.


Most complex litigation involving the state is not capable of a simple resolution for a dollar figure. Rather, these cases involve policies or programs that affect numerous state citizens on a day-to-day basis. Whether it is special education for children in court-ordered placements, utility rates, some aspect of the Medicaid program or adequacy of public education, resolution is unlikely to be simple. There is also usually more than one way to achieve the desired result. In an ever rapidly changing society one of the most important goals of any settlement is to maintain the maximum flexibility to use state dollars in the most efficient way possible.

Unique issues arise in regards to any proposed settlement of a class action case that involve improvements to a program for services run by a state agency that require new funding. Such a provision must have legislative approval and can only be for the current biennium.10

Case Histories

Laaman v. Warden, New Hampshire State Prison: This case, filed in federal court in 1976, was an omnibus conditions of confinement case concerning conditions at the New Hampshire State Prison for Men in Concord. The case was resolved by a consent decree after preliminary findings by the court.11 The consent decree was amended as a result of a contempt motion filed in 1986; and the federal court maintained jurisdiction over the matter until recently. The conditions covered included a multitude of issues, from provision of a law library to mental health. It is now technically closed.

Garrity v. Gallen: A class action brought in 1978 by residents of the New Hampshire school for mentally retarded, then known as the Laconia State School, seeking broad-based relief including a ruling that the right to rehabilitation required placement in the least restrictive alternative in community placements. After extensive litigation including over forty days of hearings, an order12 finding various violations of Section 504 of the Rehabilitation Act,13 New Hampshire’s Education of Handicapped Children Act,14 and New Hampshire’s Developmentally Disabled Act15 was entered in 1981. Although the court did not find that the various statutes required deinstitutionalization or community placement,16 the court ordered the state and plaintiffs to submit a "plan of implementation." Under the consent decree subsequently entered, the state undertook substantial changes to Laconia State School and the services provided. Although not directly required by the consent decree, implementation resulted in gradual deinstitutionalization and the Laconia State School population declined until it was closed in 1991.

Fiandaca v. Powell: 1987 class action suit by female state prisoners seeking improved facilities in the state for women.17 At the time the suit was filed, there was no separate facility in New Hampshire for female inmates convicted on felonies and sentenced to more than one year of incarceration. The case was settled by the State acquiring the former Hillsborough County Correctional facility in Goffstown for use as a women’s facility.

James O. v. Marston: In 1991 the James O. Consent Decree resolved a class action lawsuit brought in 1987 regarding special education for children in out-of-home court ordered placements as a result of abuse and neglect, CHINS or delinquency petitions.18 It required that certain actions be taken and programs implemented by the DOE, DCYF and State Facilities including YDC, YSC, Tobey School and Philbrook. Prior to the scheduled expiration date of January 1, 2000, the class counsel filed a motion for contempt based on numerous issues of non-compliance. A stipulation was reached in January 2001 for continuation of the Decree in regards to DCYF and DOE. The stipulation contained additional reporting and monitoring requirements designed to deal with the issues non-compliance. Compliance was reached in 2003.

Swain v. Gregg: This 1990 class action suit brought under 42 U.S.C. §1983 alleged that the State had violated the federal Medicaid Act, 42 U.S C. §1396a, by failing to provide children eligible for Medicaid with access to adequate dental care due to low dental reimbursement rates. In the 1999 consent decree resolving the suit, the state agreed to raise specific rates by specified amounts and to take other actions designed to improve access to dental services for Medicaid children.

Eric L. v. DHHS: This 1991 class action lawsuit alleged that DCYF had violated the constitutional and federal statutory rights of abused and neglected children. The case was resolved after several years of litigation and nearly a year of negotiation. A settlement agreement was approved by the federal court for a five-year term. The settlement addressed twelve substantive areas: adoption, assessment of abuse and neglect reports, delivery of medical care to children in the custody of DCYF who are placed out of home, family services, foster parent recruitment and retention, foster parent training, identification of (both) parents of children who are the subject of petition of abuse or neglect, permanency planning, provider accountability, teen independent living programs, voluntary service cases, and worker/supervisor training. Litigation continues at this time concerning the State’s compliance.

Claremont/Sirrell: The history of education funding in New Hampshire is chronicled in the series of New Hampshire Supreme Court decisions19 from 1993 to 2002 concerning the obligation of the state to provided education, adequacy and proportionality of tax burden.

New Hampshire Health Care Association v. DHHS: These were a series of state and federal court actions for declaratory and injunctive relief and damages brought by the Association on behalf of its member nursing homes to challenge the State’s Medicaid nursing home rate of reimbursement system. In the first lawsuit, the Association alleged that the State violated the Federal Medicaid law and the State Administrative Procedures Act when it implemented amendments to the nursing home Medicaid reimbursement system in 1995 and 1996 that included a rate cap and changes to the reimbursement methodology. In the subsequent lawsuits, the Association alleged the State violated a settlement agreement and challenged the adequacy of the rates under the new reimbursement system implemented in 1999.

Bruce Heartz v. Commissioner, DHHS; Bonnie Bryson v. Commissioner, DHHS; and Bessie Cuming v. Governor, et al.: These were a series of state and federal court actions, two of which were brought as class actions, in which the plaintiffs challenged the administration of the State’s Medicaid waiver programs for persons with acquired brain disorders and developmental disabilities. Plaintiffs are Medicaid recipients who sought services in community settings under the State’s Medicaid home and community based care waivers for persons with acquired brain disorders and developmental disabilities. Two of these cases remain ongoing.

Electric Utility Restructuring: In the move from monopoly to competition initiated by 1996 legislation, the PUC ordered electric rates to move towards the regional average while allowing competition in previously exclusive franchise areas. All 6 New Hampshire utilities sued the state in the United States District Court. The Attorney General’s office retained outside counsel to represent the PUC defendants while the Attorney General represented the Governor’s office in the federal litigation and before the FERC, the PUC and the NH Supreme Court. Over the period of 6 years the Attorney General was instrumental in negotiating comprehensive settlements with all six utilities, ending the federal litigation, achieving substantial rate reductions and opening the door to retail electric competition.

Hawkins v. DHHS: This 1999 suit was filed as a class action suit under 42 U.S.C. §1983 challenging the administration of the State’s Medicaid plan for Medicaid recipients under the age of 21 who receive dental services alleging that the State has violated the federal Medicaid Act, 42 U.S C. §1396a, the federal constitution, and state law by failing to provide children eligible for Medicaid with access to adequate dental care. The plaintiffs sought declaratory or injunctive relief requiring the State to increase the rate at which it reimburses dental care providers and to revise its policies and procedures with regard to providing Medicaid dental benefits. The case has recently been resolved by a consent agreement that provides that DHHS will take actions to improve services to the class members by improved notices, education, services, and fund to be used in the most cost effective manner including rate increases and improvement to the dental safety net.

New Hampshire v. Maine: In 2000 New Hampshire filed a writ of original jurisdiction with the United States Supreme Court seeking resolution of the hundred plus year old dispute with the State of Maine concerning the boundary between New Hampshire and Maine where the Piscataqua River flows into Portsmouth Harbor. The United States Supreme Court rejected New Hampshire’s claim based on judicial estoppel.20

By Michael K. Brown, Senior Assistant Attorney General

The Department of Corrections ("DOC") is not the biggest state department represented by Civil but it is one of the most active clients. Nearly all of the attorneys in Civil have, at one time or another, represented the DOC in a wide range of litigation in both state and federal courts. Inmates, it must be said, are one of the most litigious groups affected by government regulation. One of the more interesting types of cases to be litigated recently involves an inmates’ right to practice religion while confined in one of the Department’s prisons.

The Right to Religion v. Prison Security

It is common to hear about someone being sentenced to prison "getting religion." Those who do practice religion in prison, however, range from being true believers to true manipulators. Religion is a personal matter and can serve as a moral compass for those who have strayed and need it to find the path to living a law-abiding life style. Other inmates, while maybe not true believers, may see religion as a constructive way to spend their time in prison where they can meet others with similar interests, worship and talk about common goals and aspirations. Perhaps not life altering but nonetheless a very positive and important prison experience. Still others may see religion as something to do when there is nothing better to do. They see the practice of religion as little more than a way to break up the monotony of prison life and nothing more.

Any opportunity for inmates to come together in a prison setting presents a potential threat to security and the safety of others. As a consequence, some inmates see prison religious activity as a way to meet up with others they would not normally come into contact with and use it as a way to pass clandestine messages or contraband such as drugs, weapons and plans of escape. Other inmates use religion as a way to exert resistance towards their jailers in truly manipulative ways. Given the importance our society places on religion activity and the protections it is afforded under both the State and Federal Constitutions, some inmates use it as a way to manipulate and take advantage of its import and protections by engaging in, or saying he or she wishes to engage in, some religious activity for reasons which are something far less than sincere.

Distinguishing those who are motivated by good intentions from those who are not is extremely difficult but, in a prison setting, the distinction is important and can have catastrophic results if not recognized. Whenever you incarcerate a group of people for committing crimes against society, it would be unrealistic to think their criminal ways stop just because they have been locked up. Crime in prison, given all its possible permutations, is a constant worry for those charged with maintaining institutional security and order. It is, after all, not uncommon for riot, murder or assault to occur within the walls of prison. Religious activity, unfortunately for prison officials, can be the perfect ruse.

The Practice of Religion in Prison

Given the stakes at risk for prison officials and the difficulty of distinguishing true believers from those who would use religion as a cover for nefarious activity, the tension between those who practice religion for whatever reason and those who are charged with running the prison can be great. The task is made more difficult given the diversity of religions that prisons accommodate. For example, the DOC accommodates Buddhists, Catholics, Muslims, Jehovah’s Witnesses, Jews, Native Americans, Neo-pagans, Protestants and other Christian groups, Rastifarians, Seventh Day Adventists, Siddha Yoga and Taoists.

In a claim arising under the Free Exercise Clause of the First Amendments, an inmate must establish that a challenged prison policy restricts his or her free exercise of a "sincerely held religious belief." Brown-El v. Harris, 26 F. 3d 68, 69 (8th Cir. 1994). While the inmate’s free exercise right is constitutionally protected, those rights, including the right to exercise sincerely held beliefs, are "necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate goals or maintain prison security." McElyea v. Babbot, 833 F. 2d 196, 197 (9th Cir. 1987).

Whether the competing interests of the Free Exercise Clause and penological goals of prison wardens are correctly balanced is determined by a "reasonableness test." Id. In other words, even if a prison regulation impinges on an inmate’s constitutional right, "the regulation is valid if it is reasonably related to legitimate penological interests." Id. quoting Turner v. Safley, 482 U.S. 78, 89-91 (1987); also see O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). Other factors considered by the courts are whether the inmate has alternative means of observance, the impact accommodation of the asserted right will have on prison personnel, other inmates, and on the allocation of prison resources and the reasonableness of alternatives. Turner, U.S. at 90-91.

In a 42 U.S.C. §1983 civil rights case where an inmate seeks to require the prison to provide particular religious items or services, courts have held that in order to establish a substantial burden on one’s exercise of religion, the plaintiff must prove that government action prevents them "from engaging in conduct or having a religious experience which the faith mandates. This interference must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine." Bryant v. Gomez, 46 F. 3d 948, 949 (9th Cir. 1995) (quoting Graham v. C.I.R., 822 F. 2d 844, 850-851 (9th Cir. 1987), aff’d sub nom. Hernandez v. Commissioner, 490 U.S. 680, 699, 109 S. Ct. 2136, 2148, 104 L. Ed. 2d 766 (1989))." Rust v. Clarke, 833 F. Supp. 1293, 1305 (D. Neb. 1995). In another §1983 case where a federal statute was applied that was specifically passed by Congress to further religious activity, the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq., the 10th Circuit Court in Werner v. McCotter, 49 F. 3d 1476, 1479-1480 (10th Cir. 1995) defined "substantial burden" as government action that "significantly inhibits or constrains conduct or expression that manifests some central tenet of a prisoner’s individual beliefs; must meaningfully curtail a prisoners ability to express adherence to his or her faith; or must deny a prisoner reasonable opportunities to engage in those activities that are fundamental to a prisoners religion." Id.

Accordingly, not all activity in a prison setting in the name of religion is allowed and when reviewed by the courts, the government’s actions frequently have been upheld. For example, in Maberry v. MeKune, 24 F. Supp. 1222 (D. Kansas 1998) the court upheld the denial of ritual items (stones, dagger, caldron, sword and censored literature regarding "blood sacrifices") to a Thelemic inmate and limited the inmate to one group activity per week. In Doty v. Lewis, 995 F. Supp. 1081 (D. Arizona 1998) the court denied inmates satanic material, candles, incense and baphonent tapestry. In DeHart v. Lehman, 9 F. Supp. 2nd 539 (E. D. Pa. 1998) the court denied a highly specialized religious diet to a Mahayana Buddhist. In Davie v. Wingard, 958 F. Supp. 1244 ( S.D. Ohio 1997) the court refused to allow long hair based on "Nazarite" beliefs. In Combs v. Corrections Corp., 977 F. Supp. 799 (W.D. LA. 1997) the court upheld a ban on a sweat lodge based on prison security interests. In Rust v. Clarke, 883 F. Supp. 1293 (D. Nebraska 1995) practitioners of "Asatra," an Icelandic term for "Odinism," were not allowed to receive a number of items for personal and ritual use even though it would be a substantial burden on their belief. The items or practices they were arguing for included an evergreen tree, charm necklace, Thor’s hammer, stone altar, small wood bowl for each participant, drinking horn, cauldron, spear with a rubber tip, viking swords from soft wood, sauna, meats for a ritual and 23 holidays including 19 feasts.

In Reed v. Faulkner, 653 F. Supp. 965 (N.D. Indiana 1987) the court upheld the denial of exemption from a hair length requirement to a Rastafarian, where long hair was not required by their religion but was a matter of personal choice. In Schuch v. Rogers, 681 N.E. 2d 1388 (1996) a state court approved the denial to Native American inmates of re ligious items which they claimed were central tenets of their religion. In Udey v. Kastner, 805 F. 2d 1218 (5th Cir. 1986) the court held that considerations of a proliferation of requests for special diets and undue cost outweighed the inmate’s interest in a diet consisting of organic foods, raw milk and distilled water.

Religious Land Use and Institutionalized Persons Act

In the City of Boerne v. Flores, Archbishop of San Antonio, et al, 521 U.S. 507 (1997), the United States Supreme Court struck down the Religious Freedom Restoration Act or RFRA, 42 U.S.C. § 2000bb et seq., holding that it clearly violated the First Amendment’s Establishment Clause. Congress, not to be undone, followed by reenacting RFRA, only this time calling it the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") and specifically enacted it to impose a greater burden on government agencies effecting the practice of religion. 42 U.S.C. §2000cc-1.

The section of the Act concerning inmate claims reads as follows:

(a) General Rule. No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on the person –

(1) Is in furtherance of a compelling governmental interest; and

(2) Is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. §2000cc-1(a).

Prison officials challenged the RLUIPA again as being a violation of the Establishment Clause, among other constitutional provisions. The Ninth Circuit, however, in Mayweathers v. Newland, 314 F.3d 1062 (2002) concluded that RLUIPA was constitutionally sound and that Congress had not over-stepped its authority in enacting the statute. Id. Also see Gerhardt v. Lazaroff, et al, 221 F.Supp.2d 827 (S.D. Ohio 2002); Johnson v. Martin, et al, 223 F.Supp.2d 820 (W.D. Mich. 2002); Freedom Baptist Church of Delaware County, et al v. Township of Middleton, et al, 204 F.Supp.2d 857 (E.D. Penn. 2002) Other courts have concluded otherwise and for various reasons have ruled that RLUIPA is unconstitutional on its face. Kilaab Al Ghashiyah v. Department of Corrections of the State of Wisconsin, 250 F.Supp.2d 1016 (E.D. Wisc. 2003); Madison v. Riter, et al, 240 F.Supp.2d 566 (W.D. Vir. 2003).

The Kilaab Al Ghashiyah court found that RLUIPA violated the Establishment Clause when it applied the three-part test established in Lemon v. Kurtzman, 403 U.S. 602 (1971). Id. Under that test a statute is permissible if: (1) it has a secular legislative purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not create excessive entanglement between government and religion. Id. at 612-13. The challenged practice or law violates the Establishment Clause if it fails to satisfy any of the three prongs. Edwards v. Aquillard, 482 U.S. 578, 583 (1987).

In Kilaab Al Ghashiyah the court found that RLUIPA failed the Lemon test concluding that it did not have a secular religious purpose, Kilaab Al Ghashiyah at 1030, that it failed to satisfy the second prong of the Lemon test, Id. at 1031, and that it created excessive entanglement into the business of operating a prison "because it forces the states to become involved with, knowledgeable about, and exceedingly sensitive to the varied religious practices of their inmates. It also forces the federal courts to become involved in prison administration, an area that the Supreme Court has admonished judges to avoid." Id. at 1031.

The Supreme Court has articulated the substantial burden test by saying that it must have a tendency to coerce individuals to act contrary to their religious beliefs. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 450-51 (1988). Also see, Thomas v. Review Board of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981); Sherbert v. Verner, 374 U.S. 398, 404 (1963). Conversely, a government regulation does not substantially burden religious activity when it has only an incidental effect that makes it more difficult to practice the religion. Thomas, 450 U.S. at 717-18. Thus, for a burden on religion to be substantial, the government regulation must compel action or inaction with respect to a sincerely held belief; mere inconvenience to the religious institution or adherent is insufficient. Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995); Jolly v. Coughlin, 76 F.3d 468, 477 (2nd Cir. 1996).

The cases interpreting RLUIPA since its enactment delineate the difference between a "substantial burden" on religious exercise as opposed to an "inconvenience" on religious exercise. Consistent with the Supreme Court’s substantial burden test, courts have concluded that the regulation must have a "chilling effect" on the exercise of religion to substantially burden religious exercise. Murphy v. Zoning Comm’n of Town of New Milford, 148 F.Supp.2d 173, 188-89 (D. Conn. 2002).

Just recently the Sixth Circuit followed the analysis of the Kilaab Al Ghashiyah court, in Cutter v. Wilkinson, 2003 W.L. 22513973 (6th Cir. 2003), and similarly declared RLUIPA unconstitutional.

This matter has yet to be addressed by either the Federal District Court for the District of New Hampshire, the First Circuit or the New Hampshire Supreme Court so there is little doubt that the legal issues surrounding the practice of religion in prison and RLUIPA will continue to challenge prison officials and generate a lot of work for those in the Civil Bureau who represent them.

By Orville B. Fitch, II, Assistant Attorney General

The Attorney General serves two primary roles in the area of election law: legal counsel and law enforcement. The Attorney General provides legal counsel to the Secretary of State on issues pertaining to the administration of elections. The Attorney General is also responsible for investigating violations of the New Hampshire election laws. RSA 7:6-c, RSA 7:8, RSA 664:18 and RSA 666:8.

The Attorney General as Legal Counsel

In addition to the broad duty of providing legal services to the Department of State, RSA 7:8, the Attorney General has specific duties that include providing advice on and approving the Political Calendar issued by the Secretary of State, RSA 652:21; and providing advice on and approval of "an up-to-date manual on the New Hampshire election laws and procedures for conducting elections," RSA 652:22. The Attorney General along with the Secretary of State and the Department of Revenue Administration reviews all municipal charter revisions or amendments and issues objections when the proposals are contrary to law. RSA 49-B:5-a.

The Attorney General does not provide direct legal advice or advisory opinions to private individuals, candidates, political committees, local governments, or local government officials. Through collaboration with the Secretary of State in the drafting of the Election Procedures Manual and in presenting associated training, the Attorney General offers guidance on complying with the election laws. At the request of the Secretary of State, the Attorney General issues advice letters to the Secretary of State on legal questions pertinent to elections. These advice letters are public documents and serve as an additional source of information on the Attorney General’s view of the election laws. Copies of the Election Procedures Manual and the Political Calendar are sent to all local election officials and are available to the public at the Secretary of State’s Office at the State House.

The Attorney General as Law Enforcer

The Attorney General conducts investigations to determine whether the election laws have been violated and may prosecute violators. RSA 7:6-c. The Attorney General may enlist the aid of the county attorneys, the state police, and other public officers. The Attorney General may hold hearings and subpoena persons to testify under oath or require the production of documents. Id.

The Attorney General examines statements of contributions, fees, and expenditures submitted by candidates, political committees, lobbyists and elected state and county officials and compels compliance with reporting and limitation statutes, RSA 664:18, , RSA 15:6, , RSA 15-A:3, , RSA 15-B:6. The Attorney General has the authority to impose administrative civil penalties for violations of the voluntary campaign expenditure caps, for failure to file contribution and expenditure reports, RSA 664:21 and for wrongful voting, RSA 659:34. When warranted, the Attorney General closes significant investigations that do not lead to prosecution by the issuance of a letter that addresses the election laws at issue. These public documents are a further source of information on the Attorney General’s view of the election laws.

An important aspect of the Attorney General’s election law legal counsel and law enforcement roles is the interaction with local election officials who receive legal counsel from the members of the bar who serve as municipal legal counsel. When appropriate and practical, we endeavor to involve the legal counsel for the municipality in significant matters. While the Attorney General will not provide legal advice to local government officials, this office will make statements and, in some circumstances, answer questions regarding conduct or practices that we consider a violation of the election laws. In effect, as law enforcers we make statements regarding what should not be done, while typically referring the local election official to pertinent statutes or case law and recommending they consult their municipal legal counsel for advice on what they should do.

How Can the Private Bar Help?

Legal counsel to municipalities are encouraged to ensure that the appropriate means of access to legal advice is understood by all the election officials in the jurisdictions you serve. Local election officials, other than members of the governing executive board, often report difficulty in gaining access to the private attorney who serves as the jurisdiction’s legal counsel. A tension exists between the Attorney General’s duty as a law enforcer to issue admonitions against improper conduct and avoiding of the actuality or the appearance of issuing legal advice to local officials. We routinely recommend that the moderators, town clerks, and supervisors of the checklist, with whom we interact, consult their jurisdiction’s legal counsel. It is mutually beneficial when these local election officials have a clear and well understood mechanism for access to legal advice.

Bring Superior Court orders pertinent to the election laws to our attention. Superior Court orders pertaining to election law related matters are a valuable, but often not easily identified or located resource. Often during the course of an election law inquiry, counsel for a local official will identify, from personal experience, a Superior Court decision that provides persuasive authority on point. We appreciate contributions to our library of these unpublished decisions.

In addition, the Legislative committees that address election law have a standing request to the Attorney General that we inform them of court decisions that affect the election laws. In the past, municipal counsel have brought to the Attorney General’s attention Superior Court decisions identifying areas of law warranting legislative attention. The Attorney General routinely provides copies of advice letters, closure letters, and court decisions on significant election law matters to the Legislative committees that address the election laws. Receiving copies of significant decisions from legal counsel to municipalities will enhance our ability to keep the Legislature informed.

On election day, contact our office immediately upon receipt of a complaint of an election law violation that is presently occurring. The Attorney General and the Secretary of State make extra staff available at each election and they routinely respond to a high volume of complaints and questions. Issues involving denial of voter registration, denial of voting, electioneering, and election procedure errors can often be corrected on election day if they are brought to our attention while they are still occurring. We are prepared to contact local officials during the election and have had significant success in resolving problems promptly. In several cases irreparable losses of the opportunity to vote have been avoided and electioneering or polling place procedural problems have been cured long before the polls close. When circumstances warrant, this office will contact the legal counsel for the town or city at issue for assistance is correcting apparent ongoing election law violations. If you serve as legal counsel to a town, city, or village district please ensure someone from your office is available on each election day and if you receive an urgent call from our office please give it a high priority.

Members of the Bar, local election officials, and the public may contact the Attorney General’s Office Election Line, toll free, at 1-866-868-3703 (1-866-VOTER03) or by email at Local election officials with general election procedure questions are best served by contacting the Secretary of State’s office first.

The Help America Vote Act

The Help America Vote Act of 2002 (HAVA), public law 107-252, establishes minimum election administration standards for votes cast in Federal elections. HAVA provides election reform across the nation with an objective of ensuring that the right to vote has an equal meaning throughout each State. It specifically requires the State of New Hampshire to:

  • Provide at least one voting machine in each polling place to enable most voters with disabilities to vote privately and independently;
  • Create a new uniform centralized statewide database of registered voters that shall be the source for the official checklist for each town and city;
  • Assist towns and cities in ensuring their polling places are accessible for people with disabilities and the elderly;
  • Certify new and existing voting systems according to national standards;
  • Ensure each qualified individual has an equal right to register and vote through statewide uniform election procedures and standards;
  • Provide voter and election official education; and,
  • Maintain a statewide complaint system for the uniform, nondiscriminatory investigation and resolution of complaints.

The Attorney General is authorized by RSA 666:14 to establish an administrative complaint procedure to comply with the requirements of HAVA. HAVA requires uniform and nondiscriminatory procedures, which allow any person who believes that a violation of Title III of that act has been violated to submit a written notarized complaint signed and sworn to by the complainant. If requested by the complainant there shall be a hearing on the record. The State must make a final determination with respect to the complaint within 90 days after which time the complainant may seek alternative dispute resolution before the Ballot Law Commission.

Title III requires that any election system used allow a voter to verify his or her votes prior to the ballot being cast, to change or correct any errors before the ballot is cast, and to alert the voter to overvotes. For paper ballot voting systems, voter education regarding overvotes is required. Title III requires a uniform definition of a vote, posting of information on voting and voting rights at polling places, marking of ballots cast after the established time for closing the polls when polling hours are extended pursuant to a court order, establishment of a computerized statewide voter registration list as the source of the official checklist, that new applicants for registration as a voter provide their drivers license or state issued non-driver identification card number, or if they have none, the last four digits of their social security number, and the verification of voter registration information by matching the information with motor vehicle or social security records. Voters who register absent, ee must provide proof of identity.

Title III also requires that voting systems be accessible to voters with disabilities in a manner that provides the same opportunity for access and participation as is available to other voters, including privacy and independence. New Hampshire’s Constitution, Part 1, Article 11, since 1984 has mandated that voter registration and polling places be easily accessible to the elderly and to voters with disabilities. The Attorney General in cooperation with the Secretary of State is enhancing State efforts to ensure local government compliance with the accessibility requirements of the State Constitution, State law and the HAVA. On most election days, representatives of the Attorney General’s office routinely conduct polling place inspections that include evaluating accessibility compliance. Legal counsel to municipalities are encouraged to ensure their clients comply with these important statutes.

2003 Changes to the Election Laws

As a result of HAVA and action by a Legislative study committee addressing domicile for voting purposes several significant changes were made to New Hampshire’s election laws in 2003. Members of the bar interested in these changes are encouraged to obtain a copy of the Secretary of State’s Election Procedures Manual which details the changes and provides related recommended election procedures. In summary the major changes include:

Voter Registration Form

The voter registration form was amended to provide for the collection of a driver’s license number or a state issued non-driver identification card number or for those applicants who have none, the last four digits of the applicant’s social security number. The federal law allows New Hampshire to register an individual to vote in federal elections without providing one of these numbers only if they have no driver’s license, non-driver ID, or social security number. An affidavit section has been added to the registration form that provides an explanation of domicile and of the duties that accompany establishing domicile in New Hampshire. HAVA requires uniform election procedures statewide. This informational section is expected to diminish the problem of different local officials providing inconsistent information on these subjects risking an absence of statewide uniformity in the application of the law.


The Legislature redefined domicile for voting purposes. "An inhabitant’s domicile for voting purposes is that one place where a person, more than any other place, has established a physical presence and manifests an intent to maintain a single continuous presence for domestic, social, and civil purposes relevant to participating in democratic self-government." RSA 654:1. The significant change is in the second prong, the intent prong, which under former law required an "intention to reside for an indefinite period." That requirement is replaced with a more objective test; whether the applicant has manifested an intent to have the place claimed as domicile that one place more than any other place where the individual participates in democratic self government. RSA 654:12 establishes concrete examples of manifestations which are presumptive proof of domicile. Any one of the following documents is presumptive evidence that the individual seeking to vote meets the domicile requirement, provided the document is currently valid, was issued to or in the name of the applicant, and shows the address the applicant claims as a domicile: (1) New Hampshire driver’s license, (2) New Hampshire vehicle registration, (3) Armed services identification, or other photo identification issued by the United States government. RSA 654:12, II (a). The Election Procedures Manual suggests other manifestations that should be considered valid evidence of domicile including: where the person owns or rents property in which he or she sleeps more than any other place during the year; where he or she conducts business with government; where he or she sends children to school; where he or she registers a dog; where he or she tells the United States mail to deliver mail that must be signed for in person; where he or she keeps most personal property used on a daily basis, etc. See RSA 654 and the discussion of domicile in the Election Procedures Manual starting at page 43 for additional information.

The 2003 changes to the law also establish a specific form for the affidavit that may be used if no proof of domicile is available. That affidavit requires the affiant to establish his or her identity, unless the affiant is personally known by the official receiving the oath. A Photo driver’s license issued by any state or the federal government, United States passport, armed services identification, or other photo identification issued by the United States government or Photo identification issued by local or state government are established as presumptively valid proofs of identity. RSA 654:12, II (b).

While it will be mandatory that an applicant for registration as a voter produce some proof of qualifications, the Legislature has not altered the grant of discretion to local election officials to determine what constitutes adequate proof. Each section of RSA 654:12 still includes the "phrase or any other reasonable documentation." The Election Procedures Manual and associated training stresses that for individuals who do not possess the usual forms of proof an opportunity must be provided to the applicant to prove they are qualified by other means. See page 46 of the Election Procedures Manual.

One effect of these changes is that statewide an individual seeking to register to vote should be able to do so quickly and easily if they bring a valid drivers license or state issued non-driver ID, even if that document is from another state. The license will, at a minimum, serve as proof of identity and evidence of age. Even if the license does not establish domicile, it will allow proof of domicile, and if necessary citizenship, by affidavit.

Land Conservation Issues

The Legislature charged the State to protect land, through purchases of conservation easements or fee interests, in order to sustain traditional forest uses, such as logging, and to ensure multiple use conservation purposes, such as limiting development but allowing public access for recreational use.21 In the last 3 years, Civil attorneys assisted with conserving more than 201,090 acres of land in the State through several conservation projects including: 962 acres in Dunbarton known as "Kimball Pond," 18,430 acres in Columbia and Stratford known as the "Vickie Bunnell Tract," 10,198 acres in Jefferson and Randolph known as the "Pond of Safety Tract," and last, but by far not the least, a conservation easement and fee interests in 171,500 acres in Pittsburg, Clarksville, and Stewartstown known as the "Connecticut Lakes Headwaters Property."

The Connecticut Lakes Headwaters property is considered an integral piece of the Northern Forest which consists of 31 million acres that stretch across, Maine, New Hampshire, Vermont, New York and into Canada. In 2001, the Legislature, Governor Jeanne Shaheen, and Senator Judd Gregg developed a plan for the State to acquire fee interests, totaling 25,000 acres, and conservation easements in the property. In 2002, the property was purchased by The Trust For Public Land and The Nature Conservancy which held it until the State could fund its purchases. On December 30, 2002, the three fee areas, collectively known as the "Natural Areas," were acquired by the Fish and Game Department. And, on October 10, 2003, the Department of Resources and Economic Development ("DRED") acquired 100 acres in fee to increase the size of Deer Mountain Campground, 8.45 acres in fee for the Magalloway Mountain Fire Lookout Tower, and 3,264 acres in fee for all of the roads on the property that are open for public use. DRED also acquired a conservation easement over 146,400 acres, which are owned by a private timber company, to limit development on the property, to ensure continuation of traditional forest uses, and to ensure public access, both motorized and non-motorized, for recreational uses on the property.

Civil attorneys also work with the Department of Agriculture, Food and Markets ("DOA") which acquires and manages Agricultural Land Preservation Easements.22 New Hampshire, like many other states, is facing population growth resulting in the development of large tracts of land traditionally used for agricultural purposes. In order to protect some of these properties, the Legislature established the Agricultural Land Preservation Committee and authorized it to purchase or accept gifts of easements that preserve land for agricultural uses.

While creating conservation easements take significant attorney time, such as more than two years of negotiations and drafting of documents to complete the acquisition of the Connecticut Lakes Headwaters property, the benefits to the State, and the Northeast, as a result of the conservation of these properties will continue for generations to come.


  1. See RSA 7:6, 7:6-c, 7:7, 7:8.
  2. Over the last four years Civil has settled between 17-21 cases per year; FY 2000 17 cases; FY 2001 19 cases; FY 2002 21 cases; FY 2003 20 cases. During this period 5%-7% of cases were settled. Most cases were resolved judicially through dispositive motions. A small percentage proceeded to trial. Civil’s caseload averages approximately 400-500 active cases at any given time.
  3. The same standard applies to the Attorney General’s Office. One assistant attorney general can represent the agency adjudicators in the same proceeding where another assistant attorney general is acting as prosecutor, although the same attorney cannot perform both functions in the same proceeding. Appeal of Trotzer, 143 N.H. 64, 68 (1998).
  4. Unfortunately, attorneys who appear before the boards have been among the worst offenders.
  5. Notices of hearings must be specific enough to give effective notice to a respondent of the charges and issues to be heard and decided. RSA 541-A:31, III.
  6. RSA 541-A:29 et seq.
  7. The Human Rights Commission statute (RSA 354-A) seeks to redress and prevent discrimination and provides civil remedies for violations but is limited because it can only be used to address discrimination in employment, housing and public accommodations. The statute cannot reach conduct that takes place on the street or in the schools.
  8. Fed. R.Civ. P. 26(a). These may still be waived by agreement of counsel.
  9. Fed. R.Civ. P. 5(e). Electronic filing is scheduled to be implemented by the New Hampshire United States District Court in June 2004. The District Court went live with its new case management system (CM/ECF) on November 3. The Court has promised to provide ample training opportunities to attorneys and staff prior to the live e-filing date and recently sent an invitation to try the system out now by visiting their web site at, clicking on the Electronic Case Files link on the left navigation bar, and clicking on the "Training" link under CM/ECF.
  10. RSA 9:19, 9:20 and 9:21. Any state official that obligates the state for funds not approved is personally liable for all funds and shall be removed from office. State v. Kimball, 96 NH 376 (1950).
  11. Laaman v. Helgemoe, 437 F.Supp. 269 (1st Cir. 1977).
  12. This case resulted in an order after a trial of approximately forty days that can be found at Garrity v. Gallen, 522 F. Supp. 171 (D.N.H. 1981).
  13. 29 U.S.C. § 794.
  14. RSA 186-C.
  15. RSA 171-A.
  16. Garrity, 522 F. Supp. at 213, 237.
  17. One aspect of this case resulted in an appeal to the First Circuit regarding the plaintiff class counsel’s conflict in representing both the female inmate class and the Garrity class and a reported decision that can be found at Fiandaca v. Cunningham, 827 F.2d 825 (1st Cir. 1987).
  18. RSA 169-B, 169-C and 169-D.
  19. Sirrell v. State, 146 N.H. 364 (2001); Claremont School Dist. v. Governor, 147 N.H. 499 (2002); Claremont School Dist. v. Governor, 144 N.H. 590 (1999); Claremont School Dist. v. Governor, 144 N.H. 210 (1999); Claremont School Dist. v. Governor, 143 N.H. 154 (1998); Claremont School Dist. v. Governor, 142 N.H. 737 (1998); Claremont School Dist. v. Governor, 142 N.H. 737 (1997); Claremont School Dist. v. Governor, 138 N.H. 183 (1993).
  20. New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001).
  21. RSA 79-A, RSA 227-M, and RSA 477.
  22. RSA 432:18 – 432:31-a.


Associate Attorney General Ann F. Larney
Associate Attorney General Anne Edwards
Senior Assistant Attorney General Wynn E. Arnold
Senior Assistant Attorney General Nancy J. Smith
Senior Assistant Attorney General Michael K. Brown
Assistant Attorney General Orville B. Fitch, II

Department of Justice, Concord, New Hampshire



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