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Bar News - February 22, 2008

NH Supreme Court At A Glance: January 2008



Criminal Law


State v. Abram, No. 2007-036

January 15, 2008

Vacated and Remanded


  • Whether the Court’s previous remand opinion or mandate divested the trial court of authority, upon remand, to resentence the defendant on the affirmed convictions. 
  • Whether the trial court violated the defendant’s due process rights by imposing a more severe sentence on remand.


The defendant appealed the sentence that the trial court imposed upon remand from the Court’s previous decision in State v. Abram, 153 N.H. 619 (2006).  The defendant had initially been convicted of twenty-one counts of aggravated felonious sexual assault and other counts and sentenced to an aggregate fifty to one hundred years in prison.  In the first appeal, the Court affirmed in part, but reversed the convictions on nine of the indictments.  On remand, the trial court effectively reinstated its original sentence.


On appeal, the Court held that nothing in its 2006 opinion or mandate divested the trial court of authority to resentence the defendant on the affirmed charges.  The Court stated that “a trial court is bound by the mandate of an appellate court on remand.”  It also noted, however, that the trial court may review the Court’s opinion in order to ascertain what the mandate commands and “is free upon remand to ‘take such action as law and justice may require under the circumstances as long as it is not inconsistent with the mandate and judgment of the appellate court.’”


The Court then vacated the trial court’s sentence and remanded on due process grounds.  The Court held that due process requires that any increased sentence or charge imposed on retrial or remand not be the result of “judicial or prosecutorial vindictiveness.” The Court concluded that a presumption of vindictiveness arose because the trial court failed to reference any conduct occurring after the initial sentencing that justified increasing the sentences on the affirmed charges.  The Court also declined to adapt the federal “sentencing package” doctrine (“at this time”) as being “uniquely adapted to federal sentencing law” and as against public policy.  Because the Stated failed to rebut the presumption of vindictiveness, the Court vacated the sentence and remanded.


Paul J. Garrity, of Londonderry, for the defendant.

Kelly A. Ayotte, attorney general, and Ann M. Rice, associate attorney general, for the State.


Criminal Law


State v. Zidel, No. 2006-549

January 18, 2008



  • Whether the First Amendment protects the defendant from being criminally charged for the possession of “morphed images” that depict heads and necks of identifiable minor females superimposed upon naked female bodies, and the naked bodies do not depict body parts of actual children engaging in sexual activity. 


The Court held that it was compelled by United States Supreme Court precedents to hold that criminalizing the defendant’s mere possession of the morphed images in question violates his First Amendment rights.  The Court noted that states can proscribe the mere possession of child pornography, but discussed the United States Supreme Court’s different treatment of child pornography and “virtual child pornography.”  The Court emphasized the New Hampshire legislature’s declared purpose in criminalizing child pornography “to prevent harm to children resulting from their ‘use as subjects in sexual performances.’”  It concluded that “criminalizing the possession of materials depicting heads and necks of identifiable minor females superimposed upon naked female bodies, where the naked bodies do not depict body parts of actual children engaging in sexual activity, does not promote this interest . . .” – “however distasteful, reprehensible, and valueless this conduct might seem . . . .”


The Court limited its holding “to the facts of this particular case,” and suggested that it may not apply to cases involving the receipt or distribution of such morphed images or cases involving morphed images, the creation of which involved the use and sexual exploitation of a real child. 


Justice Hicks issued a dissenting opinion.


Kelley A. Ayotte, attorney general, and Nicholas Cort, assistant attorney general, for the State.  Theodore Lothstein, assistant appellate defender, of Concord, for the defendant.


Worker’s Compensation


Michelle Alonzi, Administratix of the Estate of Glenn Hopkins v. Northeast Generation Services Company, No. 2007-039

January 15, 2008

Reversed and Remanded


  • Did the trial court err in denying defendant’s motion to dismiss and in ruling that the estate of an employee who died without dependents may maintain a wrongful death action against the employer, on the basis that the exclusivity of the death benefit provision under the Worker’s Compensation Law is unconstitutional according to Park v. Rockwell International Group Corp., 121 N.H. 894 (1981)?


The decedent died while acting within the scope of his employment.  He left no dependents.  Decedent’s estate brought asserted wrongful death claims against decedent’s employer, Northeast Generation Services Company (“NSG”) ad others.  NSG moved to dismiss based upon Park, which held that the exclusive nature of the death benefit available under Worker’s Compensation Law for employees who die without dependents in the course of their employment violated equal protection.


On appeal, the Court held that “the legal landscape has changed to such a degree as to require us to overrule Park” and noted that its analytical approach in Park “is a remnant of abandoned doctrine and otherwise out of step with the development of the law.”


The Court then addressed the question of “whether the exclusivity of the death benefit available to the estates of dependentless decedents killed at work under the Worker’s Compensation Law violates equal protection . . .”  The Court first concluded that it must apply intermediate scrutiny to assess the disparate treatment.  It then rejected the equal protection challenge, concluding that “limiting the benefits provided to decedent employees who leave no dependents is simply an extension of the government’s important interest in providing benefits when an employee’s earning power is diminished or lost due to a workplace injury” and “is in keeping with the purpose of the comprehensive scheme” and, therefore, “substantially related to an important government objective.”


Paul R. Cox (on brief) and Sarah E. Cox (orally) of Burns, Bryant, Cox, Rockefeller & Durkin, of Dover, for the plaintiff.  Timothy A. Gudas (on brief) and James E. Owers (orally) of Sulloway & Hollis, P.L.L.C., of Concord, for defendant Northeast Generation Services Company.

Patrick H. Taylor (on brief) of McLane, Graf, Raulerson & Middleton, P.A., of Manchester, for the New Hampshire Trial Lawyers Association, as amicus curiae.


Worker’s Compensation


Appeal of Anheuser-Busch Co., Inc. (NH Compensation Appeals Board), No. 2007-197

January 15, 2008

Affirmed in part, Reversed in part


  • Whether the New Hampshire Compensation Appeals Board erred in requiring petitioners to pay disability benefits to the respondent following his knee replacement surgery in January 2006.


The respondent suffered compensable, work-related injuries to his knees in 1990 and 1998.  He underwent ligament reconstruction surgery after each event, but continued to work.  In 2006, the respondent had bilateral total knee replacement surgery.  Petitioners paid for the surgery, but denied respondent’s claim for disability benefits.


The Court affirmed the New Hampshire Compensation Appeals Board’s determination that the respondent was entitled to disability benefits as he suffered from a cumulative trauma injury.  The Court rejected the petitioners’ argument that the injury related back to the 1990 and 1998 injuries and that respondent’s claims were therefore time barred.  “The record supports the conclusion that the respondent’s knee conditions, which ultimately resulted in knee replacement surgery, were the result of continuing work-related stress and aggravation on his knees rather than a natural progression or worsening of his original injuries.”


The Court reversed the Board’s determined date of injury, holding instead that the date of injury was when the respondent had knee replacement surgery.


Laurence W. Getman and Tracy L. McGraw of Getman, Stacey, Schulthess & Steere, P.A., of Bedford, for the petitioners.  Jared O’Connor of Gawryl & MacAllister, of Nashua, for the respondent.



Churchill Realty Trust v. Dover Board of Adjustment, No. 2007-043

January 15, 2008

Reversed and Remanded


  • Whether the trial court erred in affirming a decision of the Dover Board of Adjustment, in turn upholding a decision of the Dover building official, denying approval for the construction of two buildings on petitioner’s land in Rollinsford, with road access and utilities provided through petitioner’s abutting land in Dover, for failure to comply with the Dover density requirements.


Petitioner owns a parcel of land in Dover and an adjacent parcel in Rollinsford.  The Dover parcel provides the only means of access to the Rollinsford parcel.  Four apartment buildings were previously constructed on the Dover parcel, later rendered nonconforming when Dover amended its ordinance to include density requirements.  Petitioner sought to construct two buildings on its Rollinsford parcel, with access through the Dover parcel.  The Dover building official denied approval for failure to comply with Dover’s density requirements.  The Dover Board of Adjustment and trial court affirmed, concluding that the two lots should be viewed as one contiguous lot, that the additional buildings substantially changed and expanded the current nonconforming use, and that the entire lot must come into compliance with the Dover density requirement.


On appeal, the Court agreed that the petitioner could not treat the municipal boundary as a lot boundary for zoning purposes where the Dover land was used to gain access to the Rollinsford land.  However, it then concluded that the proposed construction solely within Rollinsford cannot be considered an expansion of the nonconforming use on the Dover parcel or otherwise required to meet Dover’s density regulations.  It held that “the uses, buildings and structures lying within a municipality [are subject] solely to the regulations and ordinances of that municipality, except where land or improvements have been ‘borrowed’” from another municipality to satisfy zoning requirements in the adjacent municipality.  Where the Dover land is “borrowed” solely for access, as here, Dover may only regulate the adequacy and impact of that access.


Francis X. Bruton, III of McNeill, Taylor & Gallo, P.A. of Dover, for the petitioner.  Allan B. Krans, Sr. of Dover, for the respondent.


  Jeffrey Roelofs specializes in environmental and land use law.  He formed the Law Offices of Jeffrey L. Roelofs, P.C. in 2007, with offices in Newburyport and Boston, after 13 years with Boston-area firms.  He is co-chair of the Boston Bar Association’s Wetlands, Waterways and Water Quality Committee and a member of the Newburyport Planning Board.  He has been a member of the NH Bar since 2004.



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