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Bar News - May 18, 2007


NH Supreme Court At-a-Glance

By:

April 2007

           

Because of the large number of cases decided by the Supreme Court in April 2007, this is Part 1 of the Supreme Court-at-a-Glance summaries for that month. Part 2 will appear in the June 8, 2007 issue of Bar News. Summaries for the entire month can be found online at www.nhbar.org, under “Publications.”

 

 

Administrative

 

Hudson v. Division of Motor Vehicles No: 2006-366

April 12, 2007

Affirmed

 

  • Whether the hearings examiner should have excluded the blood test as evidence of in the hearing resulting in the suspension of petitioner’s license where the transmittal slip failed to comply with the methods prescribed by the Commissioner of the Department of Safety, pursuant to RSA 265:85, IV (2004).

 

On appeal of the suspension of his driver’s license, plaintiff argues as there was no indication of the type of non-alcoholic cleaner used in collecting his blood and because the transmittal slip stated the wrong date and time that the blood was drawn, and fails to provide the name and date of the person drawing the blood, the decision of the court finding theses were de mininimis violations should be overturned.  In an appeal to the superior court from an ALS hearing, the plaintiff bears the burden of showing that the order upholding the suspension was clearly unreasonable or unlawful and all findings of fact on questions properly before the hearings officer are deemed to be prima facie lawful and reasonable.  RSA 263:75 (2004); Saviano v. Director, N.H. Div. of Motor Vehicles, 151 N.H. 315, 318 (2004).  As there was no evidence on the record that the violations affected the reliability of the blood test itself and no argument presented that the blood test was not performed in accordance with the regulations governing the standards for performing testing blood, the exclusionary rule in the case of a violation of the regulations governing the methods used in obtaining the sample.

 

Civil

 

Fisher v. Minichiello No: 2005-884

April 12, 2007

Affirmed

 

  • Whether: (1) the evidence at trial was sufficient to support a stalking order and (2) the trial court decision contravenes RSA 633:3-a and RSA chapter 173-b and is erroneous as a matter of law and public policy.

 

Under RSA 633:3-a, III-a, a person who has been the victim of stalking may file a civil petition in either district or superior court seeking the relief available under RSA chapter 173-B, including a protective order and must prove “stalking” by a preponderance of the evidence.  (1) In considering defendant’s sufficiency arguments, the court took the opportunity to exercise their supervisory authority and provide instructions to trial courts in their issuance of civil stalking orders under RSA 633:3-a, III-a and held that when issuing a stalking order in response to a civil petition filed pursuant to RSA 633:3-a, III-a, the trial court must make findings on the record that a defendant engaged in two or more specific acts “over a period of time, however, short, which evidences a continuity of purpose”.  As the statute sets forth a nonexhaustive list of acts, the trial court’s finding of threats directed at a targeted person’s co-workers may be considered as constituting a course of conduct under section II, even though not specifically enumerated.  (2) The court held that the plain language of the statue does not limit the availability of a protective order to the family or household member of a victim, and allows any person to file for such a protective order.

 

Criminal

 

Sleeper v. Warden No.: 2006-150

April 5, 2007

Reversed

 

  • Whether the Superior Court erred in granting Sleeper’s petition for writ of habeas corpus and ordering a new trial.

 

Sleeper was convicted after a jury trial in Superior Court of several charges of aggravated felonious sexual assault and felonious sexual assault.  Due to events occurring after jury deliberation, and concern over whether there had been an improper shifting of the burden of proof on the part of the jury, the trial court entered an order giving the parties an opportunity to file motions requesting any relief deemed appropriate accompanied by a detailed memorandum of law supporting the parties’ position.  Sleeper filed a motion to reconvene the jury, which was denied by the trial court.  Sleeper appealed, raising five issues including the issue of reconvening the jury.  That issue was not briefed and the convictions were affirmed. Subsequently, Sleeper filed a petition for writ of habeas corpus and the superior court granted the petition and ordered a new trial.  On appeal from that order, the court held that habeas corpus is not a substitute for an appeal, but petitioner must show harmful constitutional error.  Bonser v. Courtney, 124 N.H. 796, 808 (1984).  Sleeper’s failure to brief the issue of reconvening the jury on appeal was a procedural default which precluded later collateral review.  Avery v. Cunningham, 131 N.H. 138, 143 (1988).

 

State v. Brown No: 2005-796

April 6, 2007

Affirmed

 

  • Whether: (1) the trial court impermissibly expanded the definition of the crime of hindering apprehension by replying to a jury inquiry affirmatively and (2) the defendant was subject to an unlawful seizure in violation of Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment.

 

(1) Defendant was convicted of hindering apprehension under RSA 642:3, I(a) (1996). During jury deliberation, the foreperson submitted a question relating to the hindering apprehension statute, asking if it was reasonable to interpret that commission of a crime could be suspicion of commission of a crime, to which the trial court responded in the affirmative, over defendant’s objection. A response to a jury question is left to the sound discretion of the trial court and will be upheld unless the court unsustainably exercised its discretion.  State v. Poole, 150 N.H. 299, 301 (2003).  The required mental state under  RSA 642:3 is the intent to hinder apprehension or prosecution, which the record supported.  The court’s response to the jury question failed to reduce the State’s burden of proof under the statute.  (2) “(I)n order for a police officer to undertake an investigatory stop, the officer must have reasonable suspicion based on specific, articulable facts taken together with rational inferences from those facts that the particular person stopped has been, is or is about to be, engaged in criminal activity”. State v. Beauchesne, 151 N.H. 803, 809 (2005). A seizure does not occur simply because an officer approaches an individual of asks for consent to search the individual or his belongings, but when an officer, by means of physical force or show of authority has in some way restrained the liberty of the person, Id. At 810.  Looking at the totality of the circumstances, the court held that the defendant was not seized when three officers approached the defendant and asked for his identification and as the Federal Constitution offers no greater protection than the State Constitution, reached the same result under either. Florida v. Bostick, 501 U.S. 429, 436 (1991).       

 

State v. Drake No: 2006-050

April 6, 2007

Affirmed

 

  • Whether: (1) the superior court erred in giving the State’s requested jury instructions because the instructions were confusing and irrelevant and (2) the evidence was insufficient to prove guilt beyond a reasonable doubt.

 

(1) The trial court’s charge to the jury at the conclusion of the defendant’s trial for possession of controlled drugs included the reading of RSA 318-B:13 and RSA 318-B:14 and a charge with the specific elements of RSA 318-B:2.  Because, viewed in their entirety, the trial court’s instructions provided the jury with a clear and intelligible description of the applicable law in the case, the court concluded that the instructions were not confusing or irrelevant.   (2) As the record showed that the defendant’s name was not on the prescription bottle containing the controlled drugs diazepam and oxycodone, taken in the light most favorable to the state, a rational trier of fact could have found that the defendant was guilty of being in unlawful possession of a controlled drug.

 

State v. Elementis Chemical No: 2006-297

April 19, 2007

Affirmed

 

  • Whether the superior court’s order regarding the civil forfeiture assessment should be reversed because the court (1) used the wrong standard to calculate the penalty, failing to recognize that a civil forfeiture is punitive, not compensatory and (2) unsustainably exercised its discretion by calculating a civil forfeiture of $100 per day for defendant’s failure to comply with waste management requirements.

 

RSA 147-A:17, I.(a), governs the handling, storage and disposal of hazardous waste.  Subsection I.(a) of the chapter provides that any person who violates any provision of the chapter or any rule adopted by the commissioner relative to the chapter shall be subject to a civil forfeiture of up to $50,000 for each day of continuing violation, in addition to enforcement by injunctive relief. (1) To show that the superior court’s decision is not sustainable a party must demonstrate that the court’s ruling was clearly untenable or unreasonable to the prejudice of its case.  State v. Cohen, 154 N.H. __, __, 907 A.2d. 983, 985 (2006).  As the record demonstrates that the superior court understood the purpose of civil forfeiture, the court rejected that argument.  (2) As neither the EPA nor the New Hampshire legislature have seen fit to promulgate the RCRA Civil Penalty Policy 4 (2003) (providing for civil penalties of up to $27,500 per day for each day of violation of the statute) as a regulation, the policy has no legal effect upon the civil forfeiture process.  Appeal of Mt. Springs Water Co., 123 N.H. 653, 657 (1983).  The court held that as the superior court’s forfeiture assessment falls within the range specified in RSA 147-A:17 and its stated rationale for the assessment is supported by the record, it did not commit an unsustainable exercise of discretion.

 

State v. Giddens No: 2005-332

April 12, 2007

Affirmed

 

  • Whether the trial court erred in denying defendant’s (1) motion in limine to exclude all evidence of his interview with two Manchester police officers of another jurisdiction as unfairly prejudicial and (2) motion to suppress all evidence from a stop of defendant’s car as an unreasonable search and seizure under the state and federal constitutions because the officer did not have reasonable articulable suspicion that a crime had been committed.

The court found that: (1) the trial court did not err in failing to exclude testimony from a police officer regarding his interview with the defendant under the New Hampshire Rules of Evidence 404(b) as there was no evidence produced of defendant’s other crimes or acts, but only an inference of what defendant thought a rapist would do or feel.  The court was similarly unwilling to overturn the trial court’s ruling under Rule 403 of the New Hampshire Rules of Evidence, finding the testimony was not unfairly prejudicial due to the probative value of the testimony and the fact that the defendant failed to request limiting instructions. (2) The seizure of evidence derived from defendant’s car was supported by evidence creating a sufficient basis to support an investigative stop.  State v. Galgay, 145 N.H. 100, 103 (2000).  The federal constitution offers defendant no greater protection than the state constitution. State v. Wiggin, 151 N.H. 305, 308 (2004), Terry v. Ohio, 392 U.S. 1, 20-21 (1968).

 

State v. J.R.S. Interiors No: 2005-493

April 17, 2007

Reversed and remanded

 

  • Whether the trial court erred: (1) in misstating the law in response to a jury question  and (2) in denying defendant’s motion to dismiss for insufficient evidence in that there.

 

Defendant was tried and convicted on a felony count of issuing a bad check pursuant to RSA 638:4, I, IV(a)(1) (1996).  (1) During deliberations the jury asked for clarification of the elements of the crime and was informed by the trial court that the State did not have the burden to prove the defendant never intended to pay the amount owed, but only to prove beyond a reasonable doubt that at the time the defendant issued the check he knew there were insufficient funds to cover the check and that the bank would not honor the check.  The court held that knowledge of insufficient funds at the time of issue is neither a legal presumption, RSA 638:4, II, nor an element of the crime.  The trial court’s erroneous response to the jury’s question prejudiced the defendant. (2) To succeed on a sufficiency of evidence claim the defendant must show that, viewing the evidence in the light most favorable to the State, no rationale trier of fact could have found guilt beyond a reasonable doubt.  State v. Grimes, 152, N.H. 310, 311 (2005).   As the final arbiter of statutory interpretation State v. Leonard, 151 N.H. 201, 203 (2004), the court noted that nowhere in the plain language of RSA 638:4 is there a requirement to prove that a violator never intended to pay, but only that they had knowledge of an insufficiency of funds at the time the check was issued.  As a rational jury could have disbelieved defendant’s testimony and found based on other evidence that he knew the check in question would not be paid by the drawee, the defendant failed to sustain his burden of proving that no rationale trier of fact could have found guilt beyond a reasonable doubt.  

 

State v. Kepple No: 2006-393                                                                                              

April 18, 2007                                                                                         

Affirmed                                                                                                                                                                                                                   

                                                 

  • Whether the superior court erred in affirming defendant’s convictions for                                                              aggravated felonious sexual assault (AFSA) and denying his post conviction motions that: (1) the evidence did not establish the “concealment or surprise” element of RSA 632-A:2, I(i) (1996); (2) the evidence failed to establish that defendant owed a duty of care to the victim required to support a conviction for endangering the welfare of the child under RSA 639:3 (1996) and (3) defendant was entitled to a new trial based on ineffective assistance of counsel.

 

(1) Knowing the victim had a drinking problem, defendant supplied victim with vodka, causing her to become mentally detached and unable to appreciate defendant’s actions.  Although the court had not previously to defined “concealment or surprise”, (an element of the offense) the decisions from other jurisdictions have held evidence of victim’s impairment as sufficient to meet the definition of surprise.  (2) The court reasoned that although they had not established a formula for determining the degree of relationship necessary to trigger a duty of care pursuant to RSA 639:3, I, in State v. Yates, 152 N.H. 245 (2005), the court did construe the statute narrowly enough to exclude an unrelated peer with no supervisory responsibility, but broadly enough to include the defendant, who’s primary contact with the victim came about through familial channels who had arranged contact with the victim through two adult family members. (3) The court explained the standard for ineffective assistance of counsel is the same under the state and federal constitutions.  A successful claim for ineffective counsel requires a showing that representation was constitutionally deficient and that counsel’s performance actually prejudiced the outcome of the case. State v. Flynn, 151 N.H. 378, 389(2004). In light of the foregoing, the court held that, as defendant failed to meet that first prong of the test by a showing of his counsels’ made egregious errors or failure to function as the state Constitution guaranteed, it need not consider the prejudice argument.

 

State v. Miller No:2005-775

April 18, 2007

Remanded

 

  • Whether the superior court erred in granting the State’s motion in limine to preclude defendant from cross-examining the victim about allegations that her father had physically and emotionally abused her, misapplying New Hampshire Rule of Evidence 608(b)by requiring that defendant show that the victim’s allegations regarding sexual abuse by her father were demonstrably false before permitting defendant to cross-examine victim about them, thereby infringing upon defendant’s constitutional rights under the Confrontation Clause of the State and Federal Constitutions.

 

The court held that although Rule 608(b) permits a cross-examiner to inquire into conduct that is probative of the witness’s character for truthfulness, there is nothing in the rule that requires a defendant to prove that allegations made by a victim about someone else are demonstrably false by clear and convincing evidence before being permitted to cross-examine the victim about them. The court clarified that their decision in State v. White, 145 N.H. 544,547 (2000) allowed defendant to introduce extrinsic evidence of  the victim’s prior allegations if he proved that they were demonstrably false.  This standard need not be met to allow defendant to cross-examine a victim about allegations of sexual assault. The court was unable to decide whether the proposed cross-examination was permissible under Rule 403 as a matter of law so remanded the issue to the trial court for resolution.  As the trial court did not bar the defendant from making a threshold inquiry into the victim’s character for truthfulness, the court’s decision did not impermissibly limit the defendant’s ability to effectively impeach the principle witness against him, as afforded to him under the Confrontation Clauses of the State and Federal Constitutions. 

 

State v. Ravell No: 2006-040

April 19, 2007

Affirmed

 

  • Whether the trial court erred by denying defendant’s motion to dismiss charges for possession of pornographic images of children in violation of RSA 649-A:3, I(e) in Carroll County in violation of the Double Jeopardy clause of the Federal Constitution where 5 of the images found on his hard drive in Carroll County were identical to images on a CD-ROM, possession of which defendant plead guilty to and was sentenced for in Cheshire County.

 

To determine whether a defendant is subject to multiple punishments for the same offense, the court must look to the “unit of prosecution” intended by the legislature.  State v. Cobb, 143 N.H. 638, 647 (1999) (federal double jeopardy analysis; see Sanabria v. United States, 437 U.S. 54, 69-70 (1978).   RSA 649-A:3, I(e) pertains to “any visual representation of a child engaging in sexual activity”.  The language “shows a legislative intent that the displaying or possessing of each photograph constitutes a separate offense.”  State v. Cobb, 143 N.H. 638, 647 (1999).

                                

State v. Shannon; No. 2006-056

April 4, 2006

Modified in part; Affirmed as Modified

 

  • Whether the trial court erred as a matter of law by ruling that (1) that the defendant bore the burden of proving the restitution order was precluded by a Massachusetts restitution order and (2) by imposing a restitution order contrary to the weight of the evidence.

 

RSA651:61-1a (Supp.2006) states the purpose of a restitution order is to compensate victims as well as rehabilitate offenders and establishes a presumption that the victim will be compensated by the offender responsible for the loss.  While the state bears the presumption of proving the defendant is responsible for the victim’s loss, the defendant who is presumed to compensate the victim bears the burden of proving he need not pay restitution because he has already fully compensated victim.  United States v. Karam, 201 F.3d 320, 326-27 (4th Cir. 2000).  As the defendant failed to produce evidence at trial that the victim had been fully compensated by a restitution order from a Massachusetts proceeding, the trial court’s findings regarding the restitution order were modified to correspond with the value of the asset established from the record. 

 

State v. Smoke Signals Pipe & Tobacco Shop No:2005-299

April 18, 299

Reversed

 

  • Whether the superior court erred: (1) by failing to find RSA 318-B:1,X-a unconstitutionally vague; (2) in categorizing items seized from defendant as drug paraphernalia and (3) by refusing to return the property.

 

A statute can be held impermissibly vague if (1)it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits or (2)it authorizes or encourages arbitrary and discriminatory enforcement.  The court held that  the definition of drug paraphernalia contained in 318-B:1,X-a contains an element of specific intent “customarily intended for use”.  As such, the word “customary” in the statute is comprehensible and presents an evidentiary question rather than a constitutional validity question.  State v. J.H.B., 415 So.814, 815.  Similarly, since comprehensive guidelines to govern law enforcement are provided by the statutory scheme, the language of the statute does not encourage arbitrary or discriminatory enforcement. (3) Since the state failed to prove the defendant knew the items in question were designed for use with controlled substances, the defendant was acquitted of all charges and the State had previously returned similar items to defendant, the items in question could not be considered contraband.

 

State v. Steimel, No: 2006-115

April 4, 2007

Reversed and remanded

 

  • Whether the trial court erred in suppressing (1) defendant’s statements obtained by an officer visiting defendant in the hospital following an automobile accident where defendant had not been informed of his Miranda rights and (2) evidence related to defendant’s blood samples where no prior warrant was obtained.

 

 

In reviewing the ultimate determination of custody de novo, the court considered arguments under the State Constitution, using federal cases to aid in its analysis.  State v. Ball, 124 N.H. 226, 233 (1983), State v. Locke, 149 N.H. 1,6 (2002).  Custody entitling a person to Miranda protections during the interrogation requires formal arrest or restraint on freedom of movement to the degree associated with formal arrest. State v. Carpentier, 132 N.H. 123,126 (1989).  As the record indicated the only restraint imposed upon the defendant was as a result of actions by the hospital staff and where the officer was granted permission to speak to the defendant by a nurse and the defendant, the court found that a reasonable person could not have understood the restraint on freedom of movement to have been imposed by the police.  State v. Tucker, 131 N.H. 526, 530 (1989).  (1) Since defendant was not in custody during his conversation with the police officer, the trial court should have made a determination on the voluntariness of defendant’s statements.  (2) In reviewing the record the court found that the trail court’s finding of no exigent circumstances justifying the admissibility of the defendant’s blood sample despite the lack of a prior warrant to be unsupported by the manifest weight of the evidence.

 

Family  Law 

 

In the Matter of Marcie Albert and Gossett W. McRae, Jr. No. 2006-139

April 18, 2007

Reversed in part; vacated in part; and remanded

 

  • Whether the trial court erred: (1) by including respondent’s projected K-1 passive income in determining child support; (2) by unsustainably exercised its discretion by imposing a ninety-day deadline for payment of arrearages and failing to deduct certain from that arrearage and (3) by failing to deduct from the arrearage child support payments made beginning May 2005 and (4) by finding that his decision to retire constituted a voluntary reduction of income intended to circumvent child support obligations and unsustainably exercised its discretion by imputing income to respondent based on a finding of voluntary unemployment.

 

(1) RSA 458-C:2, IV (2004) specifies that “gross income” includes net rental income. The trial court erred in including the entire amount of the reported K-1 payments to respondent as “net income”, the amount of the error to be determined on remand. The court vacated the trial court’s determination of respondent’s gross income and remanded for recalculation of the respondent’s support obligation, including the amount of arrearage. (2) As the trial court’s order regarding arrearages was vacated, this issue is moot. (3) The court held the record appears to establish that the trial court’s failed to deduct the amount that respondent had previously paid to petitioner and that error should be corrected on remand.  (4) Notwithstanding the trial court’s statutory authority to impute income to a voluntarily unemployed or underemployed parent, under RSA 458-C:2, IV(a) the court failed to do so. As the amount of the child support award is being remanded to the trial court for reconsideration, the court vacated the trial court’s finding that respondent voluntarily reduced his income, with instruction that it makes specific findings of fact and ruling of law on this issue, should it be revisited.            

 

Labor

 

Appeal of New Hampshire Department of Safety No: 2005-386

April 17, 2007

Affirmed

 

  • Whether the Board erred as a matter of law because it: (1)improperly applied the status quo doctrine and (2) exceeded its authority by requiring the Division to continue an erroneous administrative practice inconsistent with the terms of the Collective Bargaining Agreement (CBA).

 

The original action was brought by the New Hampshire Troopers Association in response to a unilateral modification of the leave deduction policy by the Division of State Police.  After a finding of unfair labor practices by the board, the Division appealed. (1) The court found that Article 22.1 of the CBA provided that the “agreement. . . shall remain in full force and effect until such time as a new Agreement is executed.”  In light of this provision, the Board erred in applying the status quo doctrine.  However, where the Board bases its decision upon mistaken grounds, its decision will be sustained if there are valid alternative grounds to support it. Appeal of City of Nashua Bd. of  Educ., 141 N.H. 768, 772 (1997).  In addition to finding that the Division committed an unfair labor practice by failing to maintain the status quo, the board also determined the language of the CBA was ambiguous.  The question of whether a provision of a CBA is ambiguous is one of law for the court to decide, Duke/Fluor Daniel v. Hawkeye Funding, 150 N.H. 581, 582 (2004) and therefore the court refused to remand the case to the Board for further deliberation on the same issue.  In reviewing the Board’s determinations, the court refused to enter into a de novo review of the evidence, but required record support for its decisions, Appeal of Town of Newport, 140 N.H. 343, 345 (1995).  The court found that the record contained sufficient credible evidence to establish that over the course of employment, the ambiguous provision of the CBA was clarified by a condition of work of “day for a day” which existed over a substantial period of time sufficient to establish it as a past practice. As both parties had knowledge that the practice existed and as their actions over time demonstrated acceptance of it, this served to amend any perceived ambiguous language of the CBA.  The court held the unilateral modification of the leave deduction policy by the Department without prior negotiation was an unfair labor practice.

 

Porter v. Manchester No: 2006-025

April 5, 2007

Affirmed

 

  • Whether the superior court’s erred in denying defendant’s motions for:

 

(1) summary judgment and (2) directed verdict.

 

The City of Manchester appealed the superior court’s denial of the above motions where it was held liable on a theory of respondeat superior for the tortuous acts of a former welfare commissioner against the plaintiff, employee, resulting in plaintiff’s suspension from the City Welfare Department. (1) The court reviewed the issues raised in support of motion for summary judgment as follows: (a) lack of control due to elected status; (b) serving the city; (c) prohibition on retaliation; (d)ratification of intentional torts and (e) estoppel for plaintiff’s retaliation and held as follows: (a) there were sufficient disputed material facts which prevented control from being settled as a matter of law; (b) there was conflicting evidence regarding motivation; (c) the City’s admonitions against retaliation are not sufficient to eliminate its possible liability; (d) as a matter of law, ratification is not necessary for an employer to be held liable for an intentional tort of employee, but is an alternative theory to respondeat superior; (e) as the City failed to undertake a collateral estoppel analysis or develop its legal argument, the court declined to review it.  In light of the foregoing, the trial court did not err by failing to grant the City’s motion for summary judgment. (2) In response to the City’s motion for directed verdict, the court addressed each of the argument in turn: (a) retaliatory actions not of the kind employee to perform; (b) serving the city; (c) no master-servant relationship and held as follows:  in light of the jury instructions given: (a) it could have reasonably found that the actions taken were of a nature and within the scope that employee was hired to perform; (b) a reasonable person could have found that the welfare commissioner was, at least in part, serving the city and (c) based upon exhibits and testimony, the jury could have reasonably found that the commissioner was authorized to supervise and that her retaliation was an abuse of legitimate supervisory power.  Based upon the record, the trial court did not err in denying the motion for directed verdict.

 

Professional Misconduct

 

Bosse’s Case: No. LD-2006-009                                               

April 4, 2007                           

Suspension modified

 

  • Whether the decision of the Professional Conduct Committee suspending respondent from the practice of law for a period of six months was an appropriate sanction for a single act of deceit with no evidence of injury to client.

 

On appeal of the sanction by the Attorney Disciplinary Office, the NH Supreme Court affirmed their retention over attorney disciplinary matters. Coddington’s Case, 154 N.H. __, __ (decided March 8, 2007). Where misconduct is determined, the purpose of the sanction is not to inflict punishment, but to protect the public, preserve confidence in the bar, preserve the integrity of the legal profession and prevent similar conduct in the future.  Id. The court found the Respondent’s misconduct in signing a property owner’s name to a real estate listing agreement where he had not obtained the owner’s consent was a single act of misconduct.  While the American Bar Association Standards for Imposing Lawyer Sanctions (2005), which the court looked to for guidance calls for disbarment when “a lawyer engages in any  ...intentional conduct involving dishonesty, fraud deceit. . .” Id. Sec. 5.11., the court held that due to the mitigating factors of (1) respondent’s lack of a prior disciplinary record; (2) his cooperation during the proceedings, including expressing remorse and admission of his misconduct; and (3) the loss of his real estate license, the respondent’s conduct was significantly less egregious than that of the attorneys in cases in which they had imposed the sanction of disbarment.  The court upheld the decision of the PCC to suspend the respondent from the practice of law in lieu of disbarment, but increased the period of suspension form six months to two years.  

 

Probate

 

In re Christopher K. No: 2005-532

April 17, 2007

Affirmed

 

  • Whether: (1) RSA 135-C:45, III violates the Due Process Clauses of the State and Federal Constitutions by providing for the involuntary admission of persons who are not currently dangerous; (2) the probate court lacked jurisdiction to grant a renewal of the respondent’s conditional discharge because his previous involuntary admission order had expired prior to the hearing date; (3) the probate court erred in failing to exclude the testimony of the court-appointed psychiatrist because respondent did not have effective assistance of counsel before and during the evaluation (4) the petition was not specific enough to satisfy RSA 135-C:36, I(b) (2005) or due process requirements and (5) the evidence was insufficient to establish current dangerousness.

 

(1) Under the strict scrutiny test, a statute’s infringement upon a fundamental right will pass constitutional muster if it is “necessary to achieve a compelling State interest” and is “neither unduly restrictive nor unreasonable”. Seabrook Police Assoc. v. Town of Seabrook, 138 N.H. 177, 179 (1993). The united States Supreme Court has r4cognized a legitimate state interest in civil commitment under its parens patriae powers in providing care to its citizens who are, because of emotional disorders, unable to care for themselves and also has the authority under its police power to protect the community from the dangerous tendencies of those who are mentally ill.  Due process under the State Constitution and federal constitution is not violated by the renewal of a conditional discharge based upon a finding of dangerousness in the past and a finding that the person, because of mental illness, poses a potentially serious likelihood of danger in the future.  Kansas v. Hendricks, 521 U.S. 346, 358 (1997). (2) RSA 135-C:39, II’s requirement that the probate court act upon a petition for the extension of involuntary admission within 30 days. This instruction is directive and not mandatory. Weare Land Use Assoc., 153 N.H. at 511. Under RSA 135-C:39, II, the extension of respondent’s involuntary admission and conditional discharge did not automatically terminate at the end of the thirty-day period and therefore respondent was still on conditional discharge, pursuant to RSA 135-C:45, III, at the time of the hearing.  The probate court retained jurisdiction to renew the conditional discharge. (3) A successful claim of ineffective assistance of counsel must demonstrate that counsel’s representation was constitutionally deficient and actually prejudiced the outcome of the case.  The level of actual prejudice must be such that there is a reasonable probability that the result of the proceeding would have been different. State v. Walton, 146 N.H. 316, 318 (2001).  As respondent failed to demonstrate actual prejudice, the trial court exercised sustainable discretion in admitting the testimony of the court-appointed psychiatrist.  (4) Although commitment, pursuant to RSA 135-C:36, I(b) (2005) will not be ordered without proof of specific acts or actions demonstrating dangerousness, (5) The conditional discharge proceeding itself focuses on the present mental state of the petitionee and the propensity of the petitionee to commit future dangerous acts and not on specific acts which demonstrate the mental condition. In re Fasi, 132 N.H. 478, 483 (1989).  No time limit on the specific act requirement has ever been imposed by this court as what is recent will depend on the nature and circumstances of the act , the history of the person and the probative force of the evidence. Id. at 485. As a person on conditional discharge should be less likely to commit a dangerous act, as long as he complies with the prescribed treatment regimen.  The court reasoned that the specific act requirement of RSA 135-B:36, I(b) applies to the original commitment only and renewal orders pursuant to the statute do not require proof of “current dangerousness”. State v. Hudson, 119 N.H. 963 (1979).

 

Wrongful death

 

Cecere v. Loon Mountain No: 2006-177

April 19, 2007

Affirmed

 

  • Whether the trial court erred in granting summary judgment to the defendants where plaintiff sued defendants (1) for negligence and (2) violating the New Hampshire Consumer Protection Act.

 

The court held as follows: (1) RSA 225-A:24, I is an immunity provision for ski area operators which provides that “(e)ach person who participates in the sport of skiing accepts the dangers inherent in the sport and. . .may not maintain an action against the operator for any injuries which result from such inherent risks, dangers or hazards”.  The court held that decedent was a “skier” under the statute because, even though a snowboarder, he used an alpine “slope” or “trail” that was designated by the defendants on the trail maps supplied to be used by skiers for the purpose of participating in the sport of skiing. RSA 225-A:2, IV. Sweeney v. N.H., 151 at 242.  The court determined that a man-made jump was a variation in terrain, and an inherent risk of skiing, within the meaning of the statute.  Although proximate cause of injury is generally a question of fact, under RSA 225-A:24, I, individuals who participate in “the sport of skiing” assume the risk of “variations of terrain” as a matter of law. Lorette v. Peter-Sam Inv. Properties, 142 N.H. 208, 211 (1997). (2) Summary judgment was properly granted to the defendants on this issue as plaintiff failed to submit any proof on the record.  As there were no genuine issues of material fact  and as the moving party was entitled to judgment as a matter of law, the motion for summary judgment was properly granted.

 

Zoning

 

Kalil v. Dummer ZBA No: 2006-381

April 19, 2007

Affirmed in part and remanded

 

  • Whether the superior court should (1) have weighed the evidence in the record to determine whether the requirements for a variance were satisfied instead of remanded the matter to the ZBA and (2) ruled upon the portion of the appeal relating to building permits.

 

The superior court’s review in zoning cases is limited. Garrison v. Town of Henniker, 154 N.H. __, __, 907 A.2d 948, 950 (2006).  The party seeking to set aside the ZBA decision in the superior court bears the burden of proof and factual findings of the ZBA are deemed prima facie lawful and reasonable and will not be set aside absent errors of law. Id. (1) As neither the case law nor RSA 677:6 expressly restrict the superior court from remanding to the ZBA for clarification, the order of the superior court, remanding to the ZBA for clarification of its decision was appropriate.  (2) As the superior court should have addressed whether the applicant’s proposed uses of his property were within the permitted uses under the zoning ordinance, it was error for the court not to have ruled on the portion of the appeal relating to the building permits.  The court therefore remanded the case to the superior court with instruction that they address the issues surrounding the permits or explain why it is reserving decision and after that remand the matter to the ZBA.

 

 

Julie J. Giordano is a graduate of DePaul University School of Law. She has been a member of the NH Bar since 1998. She is also a member of the Vermont Bar and prior to her current position as an English and Social Studies teacher in Florida, she was an attorney with Kristensen Cummings Phillips & Carroll in Brattleboro. She has also been a member of the state bars of Illinois and Kentucky.

 

 

 

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