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Bar News - October 19, 2007

NH Supreme Court At-a-Glance: September 2007



Appellate Practice

Scott A. Wanner


Atwater v. Town of Plainfield, No. 2006-915

September 28, 2007

Reversed and remanded


  • Whether failure to name a proper party on a timely filed notice of appeal of a planning board decision required dismissal where the proper party was not named until after the thirty-day filing deadline of RSA 677:15 had expired.


Plaintiffs filed a timely appeal that failed to name the proper party as defendant.  After substituting named defendants, the trial court erred by court dismissing the appeal as to the newly named defendant.  Although strict compliance is required as to the time of filing, the statute does not require that notice be provided nor that parties be noticed.  Unlike failing to name a proper party in a lawsuit prior to the expiration of a statute of limitations, an administrative appeal is simply the continuation of a preexisting suit.  The trial court was in error to find that the wrong party was named divested the court of jurisdiction.


Criminal Law

In re Juvenile, No. 2006-406

September 25, 2007



  • Whether evidence obtained during a search of a student’s school locker should be suppressed where the identities of informants were not disclosed, no criminal conduct had been alleged, and the locker was not identified as the whereabouts of the reported paraphernalia.


The trial court properly denied a motion to suppress evidence obtained through searching a high school student’s locker after a teacher reported other students speaking about the student’s possessing a pot pipe at school on consecutive days.  While public school officials are not exempt from the constitutional prohibitions against unreasonable searches and seizures found in Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to the United States Constitution, they are afforded greater flexibility than are law enforcement officials. State v. Drake, 139 N.H. 662 (1995).  A different, less stringent standard than “reasonable suspicion” or “probable cause” applies to searches in the school context.


Searching the student’s locker was reasonable under the circumstances, both in terms of its justification and its scope.  Despite the original informants being unidentified, the report was made by a teacher whose judgment assessing the reliability of informants is to be given some deference.  Further, the teacher heard the same story on two consecutive days.  Although a pot pipe is not itself illegal contraband, that marijuana might be involved was a reasonable inference.  Moreover, a student’s locker is a plausible location for storing a large pot pipe.


New Hampshire v. Lopez, No.  2006-257  

Rivera v. Warden, N.H. State Prison, No. 2006-773

September 21, 2007

Both Denied


  • Whether in light of the US Supreme Court’s holding in Halbert v. Michigan, 545 U.S. 605 (2005), an indigent defendant who appeals the denial of a motion to withdraw a guilty plea is entitled to court-appointed counsel.


Lopez appealed to withdraw guilty pleas on the grounds that they were not knowingly or voluntarily made; Rivera appealed the denial of a post-conviction claim that he received ineffective assistance of counsel when he pled guilty.  While Halbert entitles a defendant to court-appointed counsel under the Federal Constitution for direct appeal from a plea-based conviction to a first-tier court that conducts discretionary, but merits-based review, it does not afford counsel when the defendant appeals a collateral challenge to a guilty plea.  The distinction hinges not upon whether the review is mandatory or discretionary, but rather upon whether or not it is merits-based.


The New Hampshire Supreme Court serves as the only appellate court in the state, providing mandatory merits-based review of every direct appeal from a criminal conviction. Sup. Ct. R. 3.  A direct appeal after the acceptance of a plea but prior to sentencing or within ten days of sentencing is entitled to court-appointed counsel. Sup. Ct. R. 7.  However, Part I, Article15 of the New Hampshire Constitution does not entitle a defendant to counsel on appeal of a collateral challenge to a guilty plea.


While a plea-based conviction may be less reliable than that produced by a trial, other factors sufficiently minimize the risk of the erroneous deprivation of liberty in a collateral attack. Acceptance of a plea requires that the record demonstrate that a defendant who pleads guilty does so knowingly, voluntarily and intelligently.  The trial court must ensure that the defendant fully understands the elements of the offense, the direct consequences of the plea, and the rights he is forfeiting.  Although it denied a general right to court-appointed counsel, the court invited either defendant to file a motion specifying any complicating factors that indicate counsel should be specially appointed, such as overcoming a language barrier.


New Hampshire v. O’Maley, No. 2006-013

September 5, 2007


(Duggan, J. dissented, with Broderick, C.J. joining the dissent)


  • Whether allowing a blood sample collection form and a doctor’s testimony about blood test results to be admitted at a DWI trial violated the State and Federal Confrontation Clauses where no witness testified as to the procedure for collecting the blood sample. 


The defendant agreed to have blood drawn for an alcohol concentration test.  Neither the technician who drew the blood nor the analyst who originally tested it testified at trial.  Instead, the assistant laboratory director who reviewed the test results to ensure compliance with applicable administrative rules, calculated the value of the blood test results, and prepared the report, testified that the defendant’s blood alcohol content was “a .14.”  Although RSA 265:90 permits the State to satisfy its burden of proof by submitting a blood sample collection form, defendant challenged the constitutionality of not being able to confront the technician or analyst.


The State failed to establish harmless error where the alternative evidence of the defendant’s guilt included a single-car accident, defendant’s admitting to having been drinking and driving, and testimony by police officers that defendant emitted a strong odor of alcohol.  Despite these factors, both officers testified that the defendant was not swaying and that his eyes did not appear to be red or glassy.  Moreover, the defendant was not asked to complete any field sobriety tests.  Given this record, the alternative evidence of the defendant’s guilt was not so overwhelming that blood test collection form and results were merely cumulative or inconsequential.


Although defendant failed to preserve his State Confrontation Clause argument for appellate review, he also appealed to the Federal Confrontation Clause found in the Sixth Amendment as interpreted by Crawford v. Washington, 541 U.S. 36, 68 (2004).  Before Crawford, admitting certain out-of-court statements did not violate the Confrontation Clause provided that they bore “adequate indicia of reliability,” for instance, if within a firmly rooted hearsay exception.  After Crawford, testimonial statements are not subject to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’”  Id. at 61.   The circumstances under which an out-of-court statement is generated is the “critical inquiry.” The court took note of two factors, whether the statement resembled an ex parte examination and whether the statement is an accusation.


The blood sample collection form was found not to be testimonial as it “bears little resemblance to the civil-law abuses the Confrontation Clause targeted.” Crawford, 541 U.S at 51.  The form was required by administrative rules rather than being requested by law enforcement.  The form did not accuse the defendant of any wrongdoing.  It merely gave information about the technician who withdrew the blood and their contemporaneous recordation of observable events of the draw itself (e.g., time drawn, cleanser used).  Calling the technician to testify at trial would merely serve to authenticate the document. Likewise, the blood test results were neutral, as they could have been incriminatory or exculpatory results. 


Petition of the State of New Hampshire, (State v. Johanson), No. 2006-584

September 5, 2007

Petition granted; dismissal vacated and remanded

(Broderick, J. and Galway, J. dissented)


  • Whether RSA 602:1 prohibits the State from bringing a criminal trial in another county than the one in which the act was committed.
  • Whether double jeopardy prevents remand after jeopardy attaches where the trial court dismisses the case for improper venue.


All judges regularly presiding in the county where the alleged criminal act occurred recused themselves after indictment, and defendant’s case was transferred to another county.  After trial but before verdict, the trial court dismissed the indictment, ruling that the defendant’s right under the State Constitution to be tried in the county where the crime was committed had been violated.


Although both Part I, Article 17 of the State Constitution and RSA 602:1 provide that offenders shall be prosecuted and tried in the county or judicial district in which the offense was committed, a party may waive such rights.  Here, the respondent waived his constitutional and statutory right to proper venue.  Respondent first objected to venue at the close of the State’s case.  Such objection was untimely since the facts giving rise to his objection to venue were evident the moment the trial court changed venue. Respondent knew or should have known then that venue was improper.  Moreover, fourteen months after the case was transferred, defendant also waived his right to a jury trial.


The Double Jeopardy Clause in Part I, Article 16 of the New Hampshire Constitution does not bar remand even though it provides that “no subject shall be liable to be tried, after an acquittal, for the same crime or offense.”  The State conceded that jeopardy attached.  However, the trial court did not decide any of the material elements of the charge.  Rather, it simply dismissed the charge for lack of venue by granting directed verdict, as distinct from a judgment of acquittal.  While venue is an element of every criminal offense, it is not a material element.


Comer v. Tracey, No. 2006-684

September 25, 2007 



  • Whether a final stalking order may be based upon constitutionally protected activity and the petitioner’s testimony as to activities not alleged in the petition.


The trial court erred finding that a reasonable person would have been placed in fear for personal safety based on the evidence and allegations on record.  RSA 633:3 two or more knowing or reckless acts that would cause a reasonable person to fear for personal safety. Constitutionally protected activity or conduct necessary to accomplish a legitimate purpose does not count toward a course of conduct establishing stalking. 


The court erred as a matter of law by considering allegations that were not in the stalking order petition when it relied upon petitioner’s testimony at hearing that respondent left a pile of cigarette-butts under her car seat.  Notice needs to be given to the defendant as to what allegations will be considered prior to the hearing.  Further, even giving considerable weight to the trial court’s judgments on the credibility of witnesses and viewing the evidence in the light most favorable to the petitioner, at the hearing.  There was insufficient evidence as a matter of law where the record contained no eyewitness accounts or other direct evidence that the respondent entered the petitioner’s residence.  Finally, the respondent’s speaking to petitioner in the parking lot outside her workplace and his telephone calls were constitutionally protected activities as the record showed respondent told petitioner that he was not a stalker during his calls and the respondent did not testify that his actions placed her in fear.


Family Law


In the matter of Adams and Houle, No. 2006-409

September 28, 2007

Reversed and remanded


  • Whether a parent’s out-of-state relocation and failure to exercise visitation rights constituted a substantial change of circumstances supporting a modification of child support as a matter of law.


The trial court erred where it concluded with minimal evidence on record that a decrease in visitation time resulted in a substantial change in financial burdens between the parents.  A parent’s moving to another state and failure to exercise visitation rights without more is insufficient to justify modifying child support.


In re Juvenile, No. 2007-084

September 20, 2007

Vacated and remanded


  • Whether parental rights may be terminated after a finding of neglect prior to the expiration of the statutorily required twelve months to correct the conditions leading to neglect. 


The probate court erred by considering only eleven months between the respondent’s adjudication of neglect and his permanency hearing because RSA 170-C requires that parents have a minimum of twelve months to correct the conditions leading to the finding of neglect.  Similar statutory considerations trumped New Hampshire Division for Children, Youth and Families’ (DCYF) contention that the full, statutory twelve-month period was not required in this case on the grounds that the probate court had taken consideration of the child’s condition of neglect by the mother prior to its finding of neglect by the father.


In the matter of Conner and Conner, No. 2006-807

September 25, 2007



  • Whether denying a father’s request for additional discovery time and appointment of a guardian ad litem prior to hearing a motion for contempt and to modify parental rights violates due process.

It is within the trial court’s broad discretion in managing proceedings to afford or deny additional discovery prior to the hearing on the merits.  It was not an unsustainable exercise of discretion for the trial court to find that forty-two days between the notification of the hearing date and the hearing itself were enough time to develop evidence.   Likewise, the court did not err by refusing to appoint a guardian ad litem (GAL) where there were expert letters in evidence regarding the contested issue of whether the father should be required to give a medication specifically prescribed for the child’s attention deficit hyperactivity disorder.


The divorce decree obliged the parties to equally share the cost of daycare and to discuss such expenses without unreasonably withholding agreement.  Therefore father was properly found in contempt for failing to pay childcare expenses after mother offered proof that the father was aware of the childcare for over two years prior to the divorce and had picked up the children from the childcare providers. 


In the matter of Kalil and Buzderewicz, No. 2007-207

September 25, 2007



  • Whether the court can refuse to disclose a sealed guardian ad litem (GAL) report to parents where the minor child has requested that the GAL keep specific information confidential.
  • Whether refusing to allow the father to view the GAL report violated his due process where he agreed to a court-approved stipulation by the parties that the report be kept sealed from the parents.


The trial court appointed a GAL for the minor child after the mother moved to modify the parenting plan.  The child, age ten, requested that the GAL not disclose to her parents information she shared in confidence with the GAL.  The parties agreed to a stipulation that the report be confidential which the court approved. 


Father later filed an interlocutory appeal after the court refused his motions to disclose the GAL’s report or to strike the report from the record in lieu of its disclosure.  Although Superior Court Rule 213 requires that reports filed by GALs in domestic custody cases be marked “confidential” and made available only to the parties and the attorneys, that general procedure does not preclude the court from keeping portions of a GAL report confidential from the parties.  Due process rights, such as the rights to be heard, to examine witnesses, to be informed of and to challenge all adverse evidence, are not absolute.  Here the father was found to have waived those rights by stipulating to the court-approved sealing of the report.


Real Property


Buchholz & a. v. Waterville Estates Association, No. 2006-463

September 20, 2007



  • Whether condominium covenants survive a tax sale, a novel question in this jurisdiction.


Plaintiffs purchased an unimproved lot within a condominium development at a tax auction where title passed by a deed entitled “Quitclaim Deed with No Covenants”.   Plaintiffs petitioned to remove the “cloud” of the condominium declarations after refusing to pay association fees that resulted in a lien placed on their property.  The trial court correctly granted defendant’s motion for summary judgment since plaintiffs took title subject to the condominium covenants that ran with the land.   The court had previously recognized easements as surviving tax sales.  Like easements, condominium covenants “sink their tentacles into the soil.”


Formula Development Corp. v. Town of Chester, Clinton Realty Trust v. Town of Chester, No. 2006-515

September 20, 2007

Reversed and remanded


  • Whether individuated lots in a cluster development are to be assessed property taxes at the time of each unit’s sale or at the time of common development.


The town’s planning board granted subdivision approval for the development of a condominium cluster development.  The town assessed taxes when each of the separate 20 units was sold. RSA 79-A provides that taxes are to be assessed at the time there is a change in use and that land is considered changed in use when actual construction is begun.  Road construction constituted a change of use under RSA 79-A.  That the units within the development where conveyed individually, with separate warranty deeds, specified acreage and property lines does not refute that they were part of the common development.  Even if the town assessed each unit individually, it must do so for each of the units at the time the road construction began.  Even where administrative rules adopted by the current use board (CUB) suggested assessing the tax when individual units were sold, such administrative rules may not contravene state statute, and as such, they are considered ultra vires.




Macie v. Helms & a., No. 2006-792

September 21, 2007



  • Whether a duty exists between a party committing a negligent driving accident and a city employee who suffers injury while performing repairs after the accident.


Defendant allegedly negligently struck and damaged a traffic light while driving.  The plaintiff, a city employee, injured his shoulder during the course of repairs to the traffic light.   The trial court properly entered summary judgment for the defendant finding there was no duty owed where the injury was not reasonably foreseeable as a consequence of the negligent act. Distinguishing between causal connection and duty, the court found that Defendant could not have foreseen the danger to the repairman’s arm.  Citing Cardozo’s majority opinion in Palsgraf v. Long Island R. Co., the scope of the duty owed is limited to those risks that are reasonably foreseeable. 162 N.E. 99, 100 (N.Y. 1928).


Torts / Official Immunity


Everitt v. General Electric Company & a, No. 2006-481

September 21, 2007

Affirmed in part; reversed and remanded in part


  • Whether a settling tortfeasor can be compelled to join litigation as a participating party, as opposed to simply named on the jury verdict form, thereby requiring them to participate in and incur the costs of litigation despite their full release from liability.
  • Whether a police officer and the town that employed him were entitled to summary judgment because officer’s decision not to detain the driver/tortfeasor was protected by discretionary function immunity and/or qualified immunity.


Tortfeasor caused serious injury to plaintiff with his vehicle subsequent to police conducting a field sobriety test and releasing him.  After tortfeasor settled for full liability insurance limits, plaintiff sued the town and the police for breaching their duty of care to prevent the accident. Defendants joined the settled tortfeasor as a third-party defendant by contending he was an indispensable party.  The town and police also sought summary judgment through immunity from the negligence claim brought by the plaintiff. 


The trial court erred in denying tortfeasor’s motion to dismiss him as an active litigant in the case.  By enacting RSA 507, the legislature has created a comprehensive statutory framework for apportionment of liability in tort actions through comparative fault, apportionment of damages, and contribution.  In Nilsson v. Bierman, the court determined that for purposes of apportionment under RSA 507, the word ‘party’ refers not only to named parties to an action, but includes settling parties and “all parties contributing to the occurrence giving rise to an action, including those immune from liability or otherwise [never sued.]” 150 N.H. 393 (2003).  However, permitting juries to allocate fault on the verdict form to former parties who have settled does not mean that a settling tortfeasor may be joined in the litigation as an active litigant.  The remaining defendants are expected to bear the burden of establishing the fault of parties no longer in the suit, rather than forcing settled parties to appear and bear the costs of litigation. 


As a matter of first impression, the court also ruled that the doctrine of official immunity (as opposed to qualified immunity for an alleged constitutional violation) may shield individual police officers from personal tort liability and vicariously protects the municipality employing them.  The common law doctrine of municipal immunity that historically protected local governments from tort liability was abrogated by the court more than three decades ago, subjecting municipalities in most instances to the same rules of liability as private corporations.  At that time, the only limited exception to liability was for acts and omissions constituting the exercise of a legislative, judicial, executive or planning function involving the making of a basic policy decision.  Now, the court reasoned that subjecting operational level decisions of police officers to unbridled tort liability would compromise the official’s ability to render independent judgment and effectively perform his job. 


Immunity from personal liability now exists for police decisions, acts or omissions that are:  (1) made within the scope of their official duties while in the course of their employment; (2) discretionary, rather than ministerial; and (3) not made in a wanton or reckless manner.  In issuing its new standard, the court reminds us that official immunity operates as a bar to a lawsuit, rather than as a mere defense against liability.  The court also noted that the legislature was free to enact legislation to otherwise afford relief to citizens harmed by the negligent conduct of municipal police officers.


However, no bright line exists to determine whether acts require a high degree of official judgment and discretion or are purely “ministerial” acts, i.e. acts that involve little choice or discretion, which are still not provided immunity.  Under the new standard, the officers’ discretion in releasing the driver after conducting field sobriety tests may be found immune on remand even though it did not involve legislative policy-making, executive planning, or municipal governing. Further, such official immunity, when available to individual public officials, may be vicariously extended, generally if not automatically, to the government entity employing the individual.




74 Cox Street, LLC & a. v. City of Nashua & a., No. 2006-829

September 21, 2007



  • Whether a Zoning Board of Adjustment (ZBA) has inherent authority to reconsider its denial of a request for rehearing within RSA 677’s thirty-day period for appeal.


Answering a question of first impression in New Hampshire, the court found the ZBA had authority to grant a rehearing after an initial refusal where the ZBA explained that it had “information that was not presented or available at the time of the original hearing.”  ZBAs are creatures of statute.  While the statutory framework of RSA chapter 677 does not explicitly authorize ZBAs to reconsider such denials, like courts, municipal boards have the power to reverse themselves at any time prior to final decision if the interests of justice so require.  Because RSA 577 sets a thirty-day limitation on noticing appeals, reconsideration by the ZBA within that time does not result in an open-ended period of uncertainty.  Finality and certainty in real estate development are better served by allowing the local board to have the first opportunity to pass upon any alleged errors in its decisions so that the court hearing the appeal may have the benefit of the board’s judgment. 



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