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Bar News - October 6, 2006

NH Supreme Court At-a-Glance – August 2006


The following is part 2, and the conclusion, of the listing of August 2006 cases. See the Sept. 22 edition of
Bar News for part 1,  or go to




Appeal of Exeter Police Association

No. 2005-718

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

No. 2005-819

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

No. 2005-436

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

No. 2005-490

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

No. 2005-765

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

No. 2205-342

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.




Garrison v. Town of Henniker

No. 2005-471

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

No. 2005-003

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

No. 2005-505

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

No. 2005-787

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

No. 2004-820

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.

 Atty. Curt Connors

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