Bar News - September 22, 2006
Supreme Court At-a-Glance
By: Curt Connors
CONSTITUTIONAL LAW – VOTING RIGHTS
Akins v. Secretary of State
August 17, 2006: Reversed and remanded
- Issue(s) Presented: Whether the method of organizing parties and candidates on New Hampshire general election ballots is unconstitutional under the New Hampshire Constitution.
The New Hampshire Democratic Party and individual Democratic, Republican and Libertarian candidates who participated in the 2004 New Hampshire general election contested RSA 656:5, which required that the party with the most votes from the previous election appear first on the ballot and that individual candidates be listed in alphabetical order. The trial court’s finding of the existence of the “primacy effect”, that appearing first on a ballot affects elections to at least some degree, was undisputed.
Although the primary challenge was based on the “equal right to be elected” protection set forth in Part I, Article 11 of the New Hampshire Constitution, the court found that the equal right to be elected operates so closely with the right to vote, that the former qualifies as a fundamental right. Because the effect on elections was undisputed, and because small margins can decide elections, the court ruled that the statute placed a “severe” restriction on the right to be elected of minority party candidates and candidates with names starting with letters later in the alphabet, triggering strict scrutiny.
Under strict scrutiny review, the court found that the State had a “compelling interest” in designing a manageable ballot, but held that the method utilized by the State was not “necessary” to furthering the interest. The court noted that other states, and even New Hampshire in its primary elections, used organization methods that were more random without adverse effect, so the State had available, less severely restrictive, options.
Given its holding under the equal-right-to-be-elected provision of the New Hampshire Constitution, the court declined to address the petitioners’ equal protection argument.
Durgin v. Pillsbury Lake Water District
August 1, 2006: Affirmed
- Issue(s) Presented: Whether a public water district can be held to have breached an implied private contract by failing to provide water in accordance with statutory requirements.
Although the water district took over the water supply obligations of the private developer, whose brochure had advertised “piped year-round water”, the court found the evidence insufficient to establish an implied contract. The municipality’s creation of the water district did not satisfy the contract requirement that there be a meeting of the minds between plaintiff and the water district.
The court noted that the motion to dismiss was granted by the trial court without prejudice to other available remedies and that plaintiff retained its statutory and regulatory remedies.
CRIMINAL LAW - APPEALS
State v. Polk
August 4, 2006: Appeal dismissed
- Issue(s) Presented: Whether a recent statutory change and amended Supreme Court rule modified the court’s ruling in State v. Homo, that a defendant convicted of a class A misdemeanor must first appeal to the superior court under RSA 599:1 before the Supreme Court has jurisdiction to hear the case.
The court held that the recent amendment to RSA 599:1 was not significant and that the Homo decision remains good law. The court also held that although recent amendments to Sup.Ct.R. 7 made court acceptance of most appeals mandatory, that general rule did not override the specific statutory requirement that convictions of class A misdemeanors in district court must first be appealed to superior court. The court found that it had no jurisdiction to hear the case.
CRIMINAL LAW - EVIDENCE
State v. McGill
August 1, 2006: Reversed and remanded
- Issue(s) Presented: Whether the defendant was improperly barred from impeaching a witness with evidence of a prior felony conviction and bipolar disorder.
In terms of the prior felony conviction for assault and battery, the court held that N.H.R.Ev. 609(a) applied, rather than N.H.R.Ev. 403. In Zola v. Kelly, the court had previously held that Rule 403 was a general rule to be used as a guide when no other rule was applicable. Because Rule 609(a) contains a specific exclusionary rule, the trial court erred in applying Rule 403.
The court held that the trial court properly prohibited cross-examination of the witness regarding bipolar disorder, when the State objected and defendant failed to make an offer of proof that the disorder caused the witness to lie or hallucinate or that the disorder affected his perception of events.
State v. Corrado
August 3, 2006: Affirmed
- Issue(s) Presented: Whether police need information implicating a specific person to satisfy reasonable suspicion for recording a conversation with that person under RSA 570-A:2, II(d).
Police were using a bugged informant to build evidence against a believed drug dealer. In arranging a sale, the dealer told the informant that he would not be at home, but someone else would be there to make the sale. The informant went to the house as arranged, where the defendant (who was not the target dealer) sold him the drugs, as recorded on audiotape.
The court held that the police had the requisite reasonable suspicion of criminal conduct to record the conversation. “RSA 570-A:2, II(d) requires only a reasonable suspicion that evidence of criminal conduct will be derived from the interception; it does not include a requirement that the identity of all those who may be recorded be known by law enforcement officials prior to the recording. While identity of the participants may be a factor in the reasonable suspicion analysis, we decline to impose such an absolute requirement in the absence of any indication of the legislature's intention to do so.”
CRIMINAL LAW – REASONABLE SUSPICION
State v. Smith
August 23, 2006: Affirmed
- Issue(s) Presented: Whether police officers traveling outside their jurisdiction lawfully stopped a driver.
Ossipee police officers were traveling in Madison, when they noticed a car operating erratically. There was no mutual aid agreement between the towns, so the officers radioed for a sheriff’s deputy or a state trooper to stop the car. The driver, Smith, committed numerous violations as they followed, including running a stop sign and almost hitting an oncoming car. The Ossipee officers stopped the car and requested Smith (whom they knew) to wait for a state trooper. A trooper arrived and made the arrest. Smith was convicted on possession of a controlled substance, discovered in the course of his arrest for DWI. In denying Smith’s motion to suppress evidence from the stop, the trial court ruled that the officers were authorized under the exigent circumstances exception.
The court first struck down Smith’s argument that the absence of non-suppression language in RSA 105:4, which authorizes town’s to employ police within the town, implies that evidence resulting from action by non-town police should be suppressed.
Next, the court affirmed the trial court’s ruling that the stop did not violate Part I, Article 19 of the New Hampshire Constitution, although on the alternate grounds of a valid investigatory stop supported by reasonable suspicion, rather than based on exigent circumstances.
Finally, the court ruled that the stop did not violate the Fourth and Fourteenth Amendments of the U.S. Constitution, because the arrest was based on probable cause.
CRIMINAL LAW – RETURN OF SEIZED PROPERTY
State v. Cohen
August 22, 2006: Affirmed
- Issue(s) Presented: Whether “bootleg” compact discs seized in connection with misdemeanor prosecutions that were later dropped or dismissed qualify as “contraband” for which return is not required under RSA 595-A:6.
The court majority (Broderick, Duggan and Hicks) held that even though the discs were not part of criminal activity under RSA 352-A:2 (intent to sell), someone likely committed a crime as well as a civil violation in their creation, so the thing itself was the offender and constituted contraband. The dissenters (Dalianis and Galway) highlighted that possession alone was not a crime and that, without an underlying prosecution, no facts had been established showing that the discs had in fact been illegally created.
CRIMINAL LAW - SENTENCING
Petition of Guardarramos-Cepeda
August 2, 2006: Petition denied.
- Issue(s) Presented: Whether a post-conviction increase of defendant’s prison sentence by the sentence review board under RSA 651:58, I violated due process or double jeopardy protections of the New Hampshire Constitution.
Following trial, the defendant was sentenced to two concurrent sentences of five to fifteen years. The State petitioned the sentence review board to increase the sentences, which defendant opposed. The court upheld the board’s increase to two concurrent sentences of ten to twenty years.
Where the defendant has been provided statutory and actual notice that his sentence is subject to further review by the board, due process is not violated. The court analogized the situation to a defendant on probation, who understands that the court retains jurisdiction to modify the sentence.
As a matter of first impression, the court held that the State’s sentence augmentation did not violate the Double Jeopardy Clause of the State Constitution. The court examined the U.S. Supreme Court case of U.S. v. Francesco, which upheld increasing the sentence of a convicted “dangerous special offender”. Following the majority’s analysis in that case, the court held that the defendant has no expectation of finality until the full, disclosed process has completed. The court followed the U.S. Supreme Court in recognizing a clear distinction between a sentence and an acquittal, which is a final event.
Although defendant failed to raise the constitutionality issue during the sentence review process, he did not waive the issue. The rule is not absolute, and the sentence review board lacked jurisdiction to consider the issue of constitutionality.
State v. Henderson
August 22, 2006: Vacated and remanded
- Issue(s) Presented: Whether charging documents and jury instructions constituted plain error in leading to a minimum mandatory sentence.
RSA 159:3 provides that a person is guilty of a class B felony if he “[o]wns or has in his possession or under his control” a firearm. The minimum mandatory sentencing statute, RSA 651:2, II-g, requires a minimum mandatory sentence “[i]f a person is convicted of a felony, an element of which is the possession, use or attempted use” of a firearm.
The court held that instructing the jury to make findings based on possession or control, rather than possession, use or attempted use, was not plain error in itself, but that the court’s use of the jury’s finding to impose a minimum mandatory sentence was plain error.
Petition of the State of New Hampshire (State v. Marcoux)
August 23, 2006: Sentence vacated and remanded
- Issue(s) Presented: Whether a previous DWI conviction had been sufficiently established to support an enhanced sentence under RSA 265:82-b, II.
Marcoux was convicted of DWI, and the State sought to use a prior DWI conviction to obtain an enhanced sentence. The State provided various documents to demonstrate the prior conviction, but notably absent was a signed acknowledgment of right to counsel and waiver of rights form. Marcoux rested on the absence of the documentation without affirmatively claiming lack of counsel during the prior conviction.
The court held that by failing to allege or present evidence of lack of counsel during the prior conviction, Marcoux failed to satisfy his burden of calling the prior conviction into question. Had Marcoux come forward with such evidence, the State would have been required to demonstrate to a clear and convincing degree that the prior conviction was valid.
In the Matter of Karen Birmingham and Gregory Birmingham
August 4, 2006: Affirmed
- Issue(s) Presented: The limits to which a pro se litigant can run afoul of deadlines set by the court and the party’s own prior commitments to the court before eventually waiving certain rights.
Respondent appeared pro se in the divorce action. The parties originally entered into a temporary agreement regarding child support, with which respondent failed to comply. At a contempt hearing, respondent agreed to either pay all obligations due under the temporary agreement or provide petitioner with evidence of inability to pay. Respondent did not comply, and petitioner filed a notice of noncompliance, to which respondent did not respond.
Respondent eventually filed a motion seeking sole custody of the two minor children, an equitable division of assets and a modification of the child support, alimony, visitation and debt obligations in the temporary agreement. At the court’s request, petitioner provided a revised proposed default order with findings regarding respondent's lack of response to court orders. Respondent failed to respond to that as well, and the court entered a final default order, which respondent did not challenge.
A year later, with the benefit of income from a new job and an attorney, respondent filed an expedited motion to vacate the judgment and vacate or modify the division of property, child support and alimony. The trial court ruled that it could not vacate the final decree and property division absent a showing of accident, mistake or misfortune. The Family Division agreed to reduce child support and alimony obligations, but only retroactive to August 20, 2004, the date petitioner received notice of respondent’s motion to modify.
The Supreme Court first found that respondent was given express, written notice that the judgment would become final if he did not timely appeal it. Because there was no accident, mistake or misfortune reasonably beyond respondent’s control, the court held there was no unsustainable exercise of discretion by the trial court in declining to grant essentially a new hearing on the merits. The court noted that his pro se status did not change the procedural rules to which he was bound; to rule so would undermine the finality of judgments and prejudice parties represented by counsel.
The court similarly upheld the trial court’s refusal to modify the property division, in that respondent’s motion did not provide evidence of fraud, undue influence, deceit, misrepresentation or mutual mistake. The court noted that the issues raised by respondent, inequitable division and lack of written reason, should have properly been raised in an appeal.
Finally, the court held that the trial court correctly ruled that it did not have discretion to modify the child support order to a date earlier than notice to petitioner, pursuant to RSA 458-C:7, II. Despite an acknowledged lack of statutory guidance, the court ruled the same in relation to the request to modify alimony.
LABOR RELATIONS LAW
Appeal of Exeter Police Association
August 15, 2006: Affirmed
- Issue(s) Presented: Whether a public employer committed an unfair labor practice under RSA 273-A:5 when it denied a union employee the presence of his attorney during an investigatory interview.
The employee was suspected of improperly using the State Police On-Line Technology System to issue a traffic ticket as a vendetta. He was notified upon arrival at work that he would be interviewed by the officer investigating the case that afternoon. The employee retained counsel, who was available at the time of the interview. The investigator forced the attorney to wait outside during the interview. The investigator offered to allow the employee to have a union representative present, but the employee declined. The union filed an unfair labor practice charge with the PELRB, after the Town rejected an arbitration award against it. The PELRB ruled in favor of the Town.
The court made four primary rulings. First, the union could not retroactively ratify the employee’s personal attorney as a representative of the union (the union retained the attorney five days after the interview). Second, although the United States Supreme Court case of N.L.R.B. v. Weingarten held that union employees have the right to union representation during an investigatory interview, the attorney was not a union representative, so there was no violation.
Third, the Town’s actions did not amount to an inquiry into the attorney’s union status. The employee expressly rejected the offer to have a union representative present.
Finally, prior PELRB decisions do not support a finding that union employees are entitled to any representative of their choice. Even if there had been prior helpful PELRB precedent, the court noted that the court, not the PELRB was the final arbiter of the meaning of the statute, and that RSA 273-A:5 does not provide the right to presence of a non-union representative.
Appeal of the Town of Hampton
August 23, 2006: Reversed
- Issue(s) Presented: Whether a posting by the Town’s Police Chief on the police department’s official bulletin board, in response to an email sent by the union president to all police personnel (union and nonunion) constituted “direct dealing” with union members and an unfair labor practice under RSA 273-A:5.
The court held that the Town had not directly dealt with union members and that there was no violation. In support of its ruling, the court noted the following: the original email had not been explicitly sent by the union president in his official capacity; union and nonunion personnel were addressed in both communications; and neither communication purported to relate to ongoing collective bargaining (which the court found had already terminated).
Appeal of the Town of Pelham
August 23, 2006: Affirmed
- Issue(s) Presented: Whether the Town committed an unfair labor practice in refusing to implement a binding arbitration award that required reinstatement of an employee, on the claimed basis that the arbitrator’s award violated public policy.
A non-uniform police dispatcher was investigated for soliciting and accepting a police discount at McDonald’s. Following the investigation, the department concluded that she had sought and accepted the discount and lied to investigators. The department determined that she had violated the department’s general rules of conduct by making false statements, and the Town terminated her on that basis.
An arbitrator later found that she had lied but that termination was too harsh a penalty. The arbitrator ordered her reinstatement. The Town filed an improper practice charge with the PELRB, which instead ruled that the Town had committed an unfair labor practice. The PELRB affirmed the arbitrator’s award.
The court affirmed the PELRB decision, finding that the public policy supporting truthfulness by police officers applies to providing exculpatory evidence in a criminal trial and has not been extended to civilian police conduct. Therefore, the court’s holding in State v. Laurie was not applicable.
Appeal of White Mountain Regional School District
August 29, 2006: Affirmed
- Issue(s) Presented: Whether the district violated the collective bargaining agreement and committed an unfair labor practice under RSA 273-A:5 when it issued letters of renewal to teachers, containing reservations and an affirmative requirement. The PELRB ruled that the district had breached the CBA in using new procedures to communicate teacher deficiencies and ordered the letters and other information removed from the teachers’ files.
The court affirmed the PELRB ruling. It first ruled that the requirements set forth in RSA 189:14-A, III were not applicable, because the CBA was signed in 2002 and the law became effective 2004. The court held that absent an express legislative intent to the contrary, new contract laws operate prospectively.
Next, the court interpreted the terms of the CBA and ruled that the contract did not reserve to the district the right to implement different procedures for addressing teacher performance and evaluations. It also found that the district was not spared by the applicable savings clause in the CBA.
Finally, the court held that district’s letters and actions did not fall within the managerial policy exception of RSA 273-A:1, XI, as the statute does not expressly except from bargaining teacher evaluation and performance review procedures.
Maxi Drug North, Inc. d/b/a Brooks Pharmacy v. Commissioner, New Hampshire Department of Health and Human Services
August 22, 2006: Affirmed
- Issue(s) Presented: Whether DHHS violated the Administrative Procedures Act when it altered the providers’ reimbursement rate via letter, rather than a formal rulemaking process.
The court majority held that although the rate change pursuant to RSA 126-A:3 constituted an agency rule under the APA, it was specifically exempted from the rulemaking process under RSA 541-A:21, III. The applicable language of RSA 541-A:21, III states:
Rules adopted under RSA 161:4, VI, relative to rates of reimbursement to providers of medical services under the medical assistance program, shall be exempt from the requirements of RSA 541-A:5 through RSA 541-A:14.
The majority interpreted the provision to exempt all rules adopted under RSA 161:4, VI.
Justice Duggan dissented, emphasizing that the phrase “relative to rates of reimbursement to providers of medical services under the medical assistance program” serves as a limitation to the exemption, so that only rules adopted under RSA 161:4, VI which are relative to rates of reimbursement are exempted. Justice Duggan reviewed the legislative history and past DHHS practice in arguing that the rates themselves were exempted, but not the methodology used to set the rates.
Cloutier v. City of Berlin
August 2, 2006: Affirmed
- Issue(s) Presented: Whether a municipality has liability under RSA 412:3 and RSA 231:90 through :92-1-a under circumstances where a manhole cover displaced during a rainstorm, causing a car accident, in particular when the municipality had notice of previous similar events and maintained liability insurance covering such an event.
“The plaintiff argues that RSA 231:90 through :92 are immunity defenses within the meaning of RSA 412:3, and thus the City is prohibited from relying upon them because it has liability insurance. The City, however, argues that RSA 231:90 through :92 set forth a standard of care differing from that of a private corporation, and thus trigger the exception contained in RSA 412:3 to permit the City to rely upon RSA 231:90 through :92 in its defense.”
The court held that RSA 231:90-92 established a statutory standard of care different from a private corporation, triggering the exception in RSA 412:3. The court found that the general prohibition against a municipality asserting immunity defenses when covered by insurance is not undermined, because it still applies in situations where a statute does not set forth a different standard of care. As to the harshness of the immunity rule, especially when the municipality has insurance to cover the loss, the court noted that matters of public policy are reserved to the legislature.
In addition the court ruled that it was not an unsustainable exercise of discretion for the trial court to find the inclement weather provision in RSA 231:92-a applicable to the facts of the case.
REAL PROPERTY LAW
Garrison v. Town of Henniker
August 2, 2006: Affirmed
- Issue(s) Presented: Proper application of the Simplex “unnecessary hardship” standard to a use variance.
Petitioner/intervener GME proposed to operate an explosives storage and blending facility on a parcel zoned rural residential. GME sought two variances: one for a commercial use where only residential was allowed and another to avoid a prohibition on injurious or obnoxious uses.
The Zoning Board of Adjustment granted the variances, which the plaintiff abutters successfully appealed. The court upheld the superior court’s reversal of the ZBA decision, finding that although the property was uniquely appropriate for GME’s purposes, the parcel itself was not unique for zoning purposes. The applicant was not denied reasonable use of the property.
Gill v. Gerrato
August 3, 2006: Reversed in part and remanded
Issue(s) Presented: Whether a non-dominant, third-party tenement has benefit of an easement running from a public road over multiple dominant parcels.
An easement runs from Route 151 over land of Cot, Birse and Gerratto. Plaintiff Gill, the next property abutting Gerratto, argued that it had benefit of the easement over the other three properties, even though Gill’s property was not subject to, or an express beneficiary of, the easement. The trial court ruled that Gill had the right to use the private easement. It also held that the easement path had originally been established as a public way in the 1700s or 1800s but had since reverted to private status by nonuse.
The court reversed the trial court’s ruling that the abutting property had the benefit of easement rights. It distinguished the facts of the case from its ruling in Heartz v. City of Concord, where the court held that the owner of a property benefited by an unrestricted easement could allow an abutting third party to use the access rights. In this case, by contrast, the property owners subject to the easement objected to Gill’s use, so Gill would need an independent right to use the easement, which it lacked. “Simply because there is no language in a deed that indicates an intention by the parties to prevent non-dominant, third-party tenements from benefiting from the easement does not mean that the deed creates an independent right to the easement in a non-dominant, third party tenement.”
In terms of whether the easement location ever qualified or today remains as a public way, the court remanded to the trial court due to (i) ambiguities over what the trial court had ruled, (ii) questions whether the path had ever qualified as a public way and (iii) expressed skepticism that a public way created by dedication or prescription would revert to a private way by mere nonuse.
Hounsell v. North Conway Water Precinct
August 1, 2006: Affirmed
- Issue(s) Presented: Whether an internal investigation by a public entity of alleged employee conduct, performed at the request of counsel but disclosed to some third parties, was exempt from public disclosure under RSA chapter 91-A:5, IV.
The report of the investigation pertained to “internal personnel practices” and was exempt from disclosure, notwithstanding disclosure of the underlying information and the report to some outside parties. “The petitioners further contend that the investigation lost its "internal status" because: (1) the precinct contracted with outside investigators; (2) it permitted Mitchell, Hounsell, and Sares to observe the interviews, at the request of the employees, without a stipulation of confidentiality; (3) Alfano allowed Mitchell to review the report; and (4) the employees were allegedly encouraged to use the interviews as an opportunity to discuss the MRI report. Such arguments are unpersuasive, however, because nothing in the plain language of RSA 91-A:5, IV restricts a public body or agency from asserting an exemption under these circumstances…”
The court also ruled that the precinct was not estopped from withholding the report, when it had earlier disclosed a related investigation report. The contents of the reports were distinct, and estoppel is to be narrowly applied against municipalities. Petitioners could not “demonstrate, under these facts, that ‘the public interest in preventing the government from capriciously dealing with its citizens [outweighs] the risk, posed by estoppel, of undermining important government interests’.”
WMUR Channel Nine v. N.H. Dept. of Fish and Game
August 3, 2006: Affirmed
- Issue(s) Presented: Whether the prohibition of cameras and audio recording devices during a controversial hunting license application renewal hearing, at the applicant’s request on grounds of shyness, violated RSA chapter 91-A:2, and, if so, whether attorney’s fees should be awarded to the excluded media.
The court held that the department violated RSA 91-A:2 in excluding the recording devices. The court declined the department’s due process argument (i.e. the claim that the department was defending the applicant’s due process rights), questioning whether a hunting license is a constitutionally protected right and ruling that the department had not sufficiently developed the argument. The court also held that even though the department exercised discretion consistent with its regulations, a regulation cannot overrule a governing statute.
The court held that award of attorney’s fees to the media was not appropriate. First, it found that notwithstanding the fact that a hunting license had not yet been determined to be a constitutionally protected interest, a driver’s license did have that protection, so it was not unreasonable for the hearing office to balance the applicant’s rights in light of the doubt. Second, the court viewed the hearing officer’s confusion, about whether the regulation or statute applied, as evidence that he did not know that his conduct would violate the statute.
Stewart v. Bader
August 22, 2006: Affirmed
- Issue(s) Presented: Whether a prior murder conviction, unsuccessfully appealed in several courts, collaterally estopped the defendant from arguing in a related civil case that he did not kill the person.
Defendant was convicted of murdering his ex-wife after years of harassment and threats. That conviction was repeatedly upheld, including by the New Hampshire Supreme Court, denied certiorari by the U.S. Supreme Court and two denied federal habeas petitions. The estate of the victim sued for wrongful death, emotional distress and attachment of defendant’s assets. The trial court awarded $500,000 for emotional distress, $2,190,544 in wrongful death compensatory damages and $2,190,544 in enhanced compensatory damages.
The court held that defendants’ prior conviction, until overturned, is deemed valid and has preclusive effect on the issue of whether he killed his ex-wife. It also upheld the award of compensatory damages, finding that defendant’s conduct as evidenced by the conviction was wanton, malicious and oppressive, and that the damages were not so excessive under the circumstances as to be considered punitive.
Other holdings included that: (i) defendant was not entitled to summary judgment on the emotional distress claim, even though plaintiff failed to file an opposing affidavit, because defendant’s own affidavit revealed genuine issues of material fact, (ii) the trial court did not unsustainably exercise its discretion in declining to sever the wrongful death and emotional distress claims, because it was “mere speculation” that the jury could not fairly consider the issue of emotional distress after finding that defendant had killed his ex-wife, and because the court’s State v. Ramos “severance- friendly” criminal standard does not apply to civil actions and (iii) defendant was not entitled to the homestead exception under RSA 480:1 because his life sentence without possibility of parole was not temporary under the statute, thereby extinguishing his homestead right.
Curt Connors focuses his civil trail ractice in enviromental, business and consumer protection litigation. He is senior associate at the firm of Giarrusso, Norton, Cooley & McGlone in Quincy, Massachusetts and is licensed to practice in Massachusetts, the District of Columbia and New Hampshire. He is currently counsel at a Plaistow Superfund site and participated in a Merrimack contract dispute recently decided by the First Circuit.