New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

Clio is the most widely-used, cloud-based practice management system in the world.

Order with big business buying power.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
MyNHBar
Member Login
Member Portal
Casemaker

Bar News - June 20, 2008


NH Supreme Court At-a-Glance: May 2008 – Part 1

By:

Supreme Court At-a-Glance for May 2008 Part 2 appears in the July 4, 2008 issue of Bar News.

Constitutional Law

State v. Robert Theriault, No. 2007-356
May 2, 2008
Affirmed

· Whether RSA 645:2, I(f), which makes payment for sexual contact or sexual penetration by the payor or another a misdemeanor, is overbroad.

Defendant, a court security officer, struck up a conversation with a woman and learned she had serious financial problems. That day or the following day he met with the woman and her boy friend and offered to pay the couple to engage in sexual intercourse with each other while he watched. He was later charged with prostitution under RSA 645.2, I(f). Defendant moved to dismiss the charges, the motion was denied, and defendant was convicted on two counts. Defendant now challenges the denial of his motion, arguing that the statute is facially overbroad under the free speech provisions of both the New Hampshire and the Federal Constitutions, N.H. CONST. pt. I, art. 22; U.S. CONST. amends. I, XIV.

The Court relies on State v. Brobst, 151 N.H. 420 (2004. The overbreadth of a statute must be real and substantial when matched against its legitimate sweep, so that a court is precluded from invalidating a statute simply because of the possibility that it might be applied in an unconstitutional manner. The doctrine applies to statutes prohibiting conduct as well as speech. A statute will be presumed to be constitutional unless there is a clear and substantial conflict between it and the constitution.

In the present case, RSA 645.2, I(f) provides that a person is guilty of a misdemeanor if a person pays, agrees to pay or offers to pay another person to engage in sexual contact or sexual penetration with the payor or with another person. Defendant argued substantial overbreadth because it could be applied to such constitutionally permitted activities as the making of a non-obscene but sexually explicit movie. The Court disagreed, feeling that the possibility of such application was exceedingly slight.

The statute in question here proscribes conduct for which the state has a legitimate interest in protecting its citizens. The trial court found that the statute was not overbroad, and the Court agrees with this finding. The defendant has not argued an "as-applied" basis, so this is not a consideration here. Finally, the Federal Constitution offers no greater protection here than the State Constitution, and the lower court decision is therefore affirmed.

David M. Rothstein, deputy chief appellate defender, of Concord for the defendant. Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the brief and orally) for the State.


Constitutional Law

State v. Lamarche, No. 2007-295
May 30, 2008
Affirmed

· Whether the statute, RSA 651-A:25, IX, is unconstitutionally vague and interferes with his right to travel.

· Whether his constitutional right to a speedy trial had been violated.

· Whether the indictment was insufficient.

On May 19, 2005 Lamarche was sentenced in Massachusetts to one year of probation. Shortly thereafter, on June 6, he reported for bail supervision in New Hampshire on New Hampshire charges, at which time the Chief Probation Officer realized that he was on probation in Massachusetts, and ordered him to leave New Hampshire within seven days, and that he could not remain in New Hampshire without permission from a "designated officer." About six months later, on January 21, 2006, he was again arrested in New Hampshire, and on February 22 arraigned on a charge, inter alia, of being in the state without permission while on probation in another state ("parole of prisoners charge"). On June 20 the State entered a nolle prosequi on this charge, and tried and convicted him on the other charges. On July 7 he was re-indicted on the parole of prisoners charge, arraigned on this on July 20, and on March 27, 2007 convicted of this. Before trial Lamarche had moved to dismiss the charge on the Federal constitutional bases that the New Hampshire statute, RSA 651-A:25, IX, was unconstitutionally vague, interfered with his right to travel, and that he had been denied a speedy trial . He also moved to quash the indictment as being insufficient. The trial court denied the motions, and this appeal followed.

The Court first considered the question of whether the statute was void for vagueness both on its face, and as applied. A statute is not unconstitutionally vague if an ordinary person applying ordinary common sense can understand what he is prohibited from doing, and what he needs to do to comply with it. The Court concluded that ordinary common sense would tell a person that he would need permission to re-enter, otherwise the absurd result that he could simply cross the border and immediately re-enter could be drawn. Consequently the statute was not void for vagueness.

As to the indictment, the Court noted that the statute required permission to remain longer than seven days, so that the indictment need only allege that he was in the State without permission more than seven days later after having been told to leave. The indictment was therefore sufficient to notify him of the charges against him.

Finally, they considered the question of whether his right to a speedy trial had been violated. The Court found that Lamarche had not satisfied any of the four factors needed to show a violation, so that this objection also failed.

Lamarche’s argument that the statute violated his constitutional right to travel was not fully briefed, and the Court declined to consider it.

McLetchie Law Office, PLLC, of Ossipee (Erland C. L. McLetchie on thebrief and orally), for the defendant; Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the brief and orally), for the State.


Consumer Protection Act

State v. Sideris, No. 2007-625
May 16, 2008
Conviction affirmed, sentence vacated and remanded for resentencing

· Whether the information charging defendant with violation of the Consumer Protection Act (CPA) by commission of an unfair and deceptive business practice was error.

· Whether defendant’s actions rose to the level of a violation of the CPA.

· Whether a sentence of probation in addition to the statutory maximum for the violation was legal..

Sideris agreed with consumer to perform roofing work immediately and to provide proof of insurance coverage, and received a deposit for purchase of materials. Defendant, however, did not purchase materials, provide proof of insurance, or show any signs of beginning work. The work was not performed, and the deposit money was not returned. Defendant was then charged and convicted of unfair or deceptive business act or practice in violation of the Consumer Protection. Defendant was then sentenced to twelve months in jail, two years of probation, and a $2,000 fine. Defendant now appeals on the grounds that (a) there was no CPA violation; (b) there was insufficient evidence that his act rose to the level of a violation; and (c) the sentence imposed was illegal. Sideris argues that the information failed to allege a criminal offense.

The Court begins by noting that the State may charge a misdemeanor through an information which must plead all the elements of a crime, but need not plead more facts than those required to identify the specific offense, enabling the defendant to prepare for trial.

Sideris argues that this is only a breach of contract. The Court disagrees, stating that defendant knowingly entered into a contract to perform a service, took money for this purpose, and then knowingly failed to either provide the service or return the money, that this conduct was of the type proscribed by the statute. The Court applied the "rascality" test, that "the objectionable conduct must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce," which applies equally to civil and criminal questions. Citing the almost indistinguishable case State v. Moran, 151 N.H. 450 (2004), the Court found defendant’s conduct in violation of the CPA.

Defendant argued that even if the conduct was proscribed it was not so egregious as to be sufficient to constitute a violation of the CPA. Here the burden is on defendant to show that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of the crime charged. Defendant did not meet this burden, the trial court did not err.

Finally, defendant, citing State v. Hancock, 156 N.H. 301, 302-05 (2007), argued plain error in the sentence imposed, and that it must therefore be vacated. The plain error rule allows the Court to consider errors not objected to, and must be used sparingly, and only to prevent a miscarriage of justice In Hancock the defendant had been sentenced to twelve months in jail, a $2,000 fine and two years of probation, as had the present defendant. The Hancock court found that a defendant could not be sentenced to the statutory maximums as well as probation. The court must retain part of its sentencing power in order to provide for enforcement of any probation violation. Thus the present defendant’s sentence constituted a plain error, and the Court vacated the sentence and remanded for re-sentencing.

David M. Rothstein, deputy chief appellate defender, of Concord, for the defendant; Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.


Elections

Opinion of the Justices (Voting age in primaries), No. 2008-292

May 19, 2008

· Whether allowing persons, age 17, who would be 18 at the time of the next state general election be eligible to vote in the presidential primary and state primary violates the New Hampshire Constitution, Part I, Article 11.

· Whether enactment of Senate Bill 436, placing specific election responsibilities on local supervisors if 17 year olds, who would be 18 at the time of the next general election, violates the New Hampshire Constitution, Part I, Article 28-a.

Senate Bill 436, proposing to amend RSA 654:1, and pending in the House of Representatives, would allow persons 17 years old to vote in presidential and state primaries, provided that they would be 18 years old at the time of the next state general election, and met the usual other qualifications for voting. The House requests the opinions of the Justices as to the State constitutionality of the proposed provisions. The Court answers the first question above in the affirmative, and the second in the negative.

The Court begins with an examination of the purpose and intent of the people at the time at which Part I, Article 11 was enacted. The Court concludes that the minimum age for voting is eighteen. The Court rejects the proposition that the legislature has the power to set the minimum voting age. While the legislature can set qualifications beyond those enumerated in the Constitution, they have no power to negate a constitutional provision, in this case that of a minimum 18 year old age for voting in elections.

But is a primary an "election" or merely a nominating process? The Court, citing Supreme Court and other case law adopts the perspective that the primary is an essential part of the election machinery, and is thus considered to be an "election."

Individuals, while they must be 18 in order to hold office, can run for office though they are younger. The Court states that this cannot be carried over to the election situation, however, since there is no correlation between voting age, and the age of holding an office. There is no contradiction between a constitutional minimum age for voting, and legislative minimums for particular elective offices.

The New Hampshire Constitution states that the legislature cannot mandate, expand or modify any program affecting local political subdivisions unless fully funded by the state, or such funding is approved by a vote of the local legislative body. The Court then finds that Senate Bill 436 does not introduce any new programs or responsibilities, and does not therefore create an unconstitutional unfunded mandate.

David Frydman and Jeffrey A. Meyers, house and senate legal counsel, respectively ; Twomey Law Office (Paul Twomey on the Memorandum) on behalf of the New Hampshire Civil Liberties Union; all parties in support of negative answers to the questions.


Eminent Domain

State v. Korean Methodist Church, No. 2007-381
May 16, 2008
Affirmed

· Whether an evidentiary hearing on a preliminary objection to a declaration of taking by eminent domain is required.

For mitigation of environmental impact in connection with proposed construction related to the Boston-Manchester Regional Airport the State sought to acquire 760 acres for preservation, of which approximately 4 acres belonged to the Korean Methodist Church of New Hampshire. A special committee held a public hearing on April 8, 2004 to hear evidence on the economic, social and environmental effects of the proposed mitigation proposal. The hearing was to determine if there was "occasion" for the layout of the proposed mitigation area, a decision balancing public interest in layout against the rights of the affected landowner and the burden imposed upon the municipality. The special committee determined that there was occasion for the layout, including the area within the Church’s property.

On November 1, 2006 the State then filed a declaration of intent to take a conservation easement of the Church’s property, the Church filed a preliminary objection to the declaration of intent on December 4, 2006. The Church did not allege that the special committee’s finding of an occasion was either fraudulent or grossly mistaken. Further procedural actions took place. The superior court, on the record before it, then denied the preliminary objection. The Church appealed the trial court having ruled without an evidentiary hearing, arguing that (1) this constituted an unsustainable exercise of discretion, and (2) violated the Church’s State constitutional right to due process.

There are three permissible grounds for an objection, one being to challenge the necessity, public purpose and net public benefit of the taking The superior court "may conduct an evidentiary hearing before it rules on the preliminary objection." The word "may" is permissive, leaving the question of an evidentiary hearing to the court.

The trial court had ruled that the Church could prevail only if it could show that the special committee’s finding was fraudulent or grossly mistaken. But the Church had not even alleged either of these grounds. There was no unsustainable exercise of discretion.

The Church had argued, firstly, that requiring it to prove fraud or gross mistake was error. The State contended that this claim of error was not preserved The Court agreed with this – the record shows that the Church had never argued that requiring it to prove fraud or gross mistake was error. Thus the Court declined to address this issue.

Second, the Church argued that the absence of an evidentiary hearing meant that the trial court heard only one side of the debate. But the Church, in their preliminary objection, never argued the issue of fraud or gross mistake, so that if the trial court heard only one side of the debate, it was because the Church failed to provide the other side.

Third, the Church argues that the lack of an evidentiary hearing meant that the trial court lacked the basis to support its findings. But the only findings relevant to the appeal were the Church’s failure to plead gross mistake or fraud, and the record supports this.

Finally, the Church contends that the lack of an evidentiary hearing violates its due process rights under the New Hampshire Constitution, pt. 1, art. 15. A due process analysis on the right to an evidentiary hearing involves three factors, but the Church neither cites nor discusses the three-factor analysis, nor does it cite any controlling precedent that the process that the Church received was insufficient. The argument was therefore undeveloped, and the Court declined to review it.

Cronin & Bisson, P.C., of Manchester (John F. Bisson and John G. Cronin on the brief, and Mr. Cronin orally), for the defendant; Kelly A. Ayotte, attorney general (Lynmarie C. Cusack, assistant attorney general, on the brief and orally), for the State.


Evidentiary Rules: Expert Witnesses

Baxter v. Temple et al., No. 2007-102
May 20, 2008
Reversed in part, vacated in part, remanded

· Whether trial court’s ruling that plaintiff’s expert witness testimony was inadmissible was error.

[State v. Langill, decided April 4, 2008, should be read in conjunction with this case as defining the role of expert witnesses.]

Baxter showed elevated blood lead levels. The pertinent New Hampshire agency found substantial evidence of lead paint contamination on the premises inhabited by the Baxters. Baxter then sued Temple et al. for failing to warn her of the existence and potential damages resulting from the lead paint contamination. In support of her contentions she designated three expert witnesses including Dr. Barbara Bruno-Golden, Ed.D., a neuropsychologist, who carried out a series of tests to determine her cognitive and behavioral status. On the day of trial Temple moved in limine to exclude the testimony of Dr. Bruno-Golden as unreliable under New Hampshire Rule of Evidence 702, RSA 516:29-a (2007), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The trial court then held a six-day Daubert hearing, resulting in a finding that Dr. Bruno-Golden’s testimony was inadmissible, also ruling out Plaintiff’s two other expert witnesses. Plaintiff, now having no expert witnesses to support their claim, the trial court dismissed the case. Plaintiff appealed, arguing, inter alia, that exclusion of Dr. Bruno-Golden’s testimony as unreliable was error.

N.H. R. Ev. 702 requires expert testimony to rise to a threshold level of reliability to be admissible. RSA 516:29 codifies the Daubert [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)] factors, and assess whether the reasoning and methodology are scientifically valid. The court is a gatekeeper, ensuring the reliability, leaving the fact-finder to evaluate the weight and credibility of the expert’s testimony. The Daubert factors are meant to be helpful, not definitive. An expert’s testimony should rest upon good grounds, and then be tested by the adversarial process.

The Court then carried out an extensive and detailed description and evaluation of the methodology and procedures used by Dr. Bruno-Golden, and concluded, contrary to the trial court, that Dr. Bruno-Golden’s methodology and procedures were reliable despite some errors, and that her testimony was admissible. Furthermore, the trial court had excluded Dr. Bithoney’s testimony because it had depended almost entirely on Dr. Bruno-Golden’s proposed testimony, which the trial court had concluded was unreliable. In view of the Court’s now finding that testimony to be reliable and admissible, the trial court’s ruling excluding Dr. Bithoney’s testimony had to be vacated.

Wiggin & Nourie, P.A., of Manchester (Gary M. Burt and Doreen F. Connor on the brief, and Mr. Burt orally), for the defendants; Seufert Professional Association, of Franklin (Christopher J. Seufert on the brief), and Thornton & Naumes, LLP, of Boston, Massachusetts (Neil T. Leifer and Andrew S. Wainwright on the brief, and Mr. Leifer orally), for the plaintiff; Hall, Stewart & Murphy, P.A., of Manchester (Francis G. Murphy on the brief and orally), for the American Academy of Clinical Neuropsychology, as amicus curiae.


Family Law

In the matter of Kevin Gendron and Jody Plaistek, No. 2007-844
May 20, 2008
Reversed and remanded

· Whether a Massachusetts determination of paternity should be afforded full faith and credit, and thus be accepted, by New Hampshire.

Gendron and Plaistek lived together, unmarried, in Derry, New Hampshire. On December 28, 2004 Plaistek gave birth to a child in Lawrence, Massachusetts. Two days later both parties signed the birth certificate, as well as a voluntary acknowledgment of parentage, stating that they were the biological parents of the child, with the understanding that this would be filed with the birth certificate, and that it was a legal document with the same binding effect as a court judgment of paternity. The child carries the same last name as the father.

Gendron and Plaistek lived together until June 2007. At that time Gendron obtained a domestic violence order against Plaistek, and filed a petition for custody. Plaistek then asserted that Gendron was not the child’s biological father, and asked for DNA testing to establish this. On August 31, 2007 the trial court held a temporary hearing at which Gendron presented the birth certificate, but not the acknowledgment, which was submitted on September 6, 2007 in a post-hearing motion. On September 17, 2007 the trial court ordered genetic testing.

On September 27, 2007 Gendron moved for reconsideration, arguing that paternity was established when both parties signed and filed the acknowledgment of paternity, and that New Hampshire was bound to give full faith and credit to that determination of paternity. The trial court denied the post-hearing motion to accept the acknowledgment since genetic testing had already been ordered, and denied the motion for reconsideration. On appeal Gendron argues, inter alia, that New Hampshire must afford full faith and credit to the Massachusetts determination. Plaistek argues that the acknowledgment was presented late and therefore cannot be considered, and even if it is part of the record, that nevertheless it created only a rebuttable presumption which should be governed by New Hampshire law, allowing rescission, and that the court properly ordered genetic testing.

The Court first accepted the acknowledgment as part of the record. Massachusetts law considers such an unchallenged acknowledgment, with statutory limitations on rescission, as sufficient to establish paternity, and New Hampshire, under RSA 168-A:2 must give full faith and credit to the Massachusetts determination. Plaistek had voluntarily signed the acknowledgment and had neither challenged nor attempted to rescind it within the allowable statutory time periods, nor had she presented any facts challenging the validity of the acknowledgment. Gendron’s paternity was therefore established.

Basbanes & Chenelle, of Groton, Massachusetts (Kevin A. Chenelle on the brief and orally), for the respondent; Phillips, Gerstein & Channen, LLP, of Haverhill, Massachusetts (Lynne A. Saben on the brief and orally), for the petitioner.


Sam Silverman received his law degree, from Suffolk University Law School and his Ph.D. in Physical Chemistry from Ohio State University. His legal work, has been mostly in criminal defense and in employment law. In 2001 he succeeded in freeing an innocent man, after more than 12 years of incarceration, obtaining a ruling from the Massachusetts Appeals Court allowing for DNA testing.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer