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Bar News - July 18, 2008

NH Supreme Court At-a-Glance June 2008



Douglas Lambert v. Belknap County Convention; Thomas A. Tardif v. Stephen H. Nedeau, Chairperson. 2007-566 & 2007-685.
Reversed and remanded.

Whether the trial court was correct in refusing to invalidate the appointment of Craig Wiggin as County Sheriff by the Belknap County Convention and the courtís denial of the petitionersí request for documents.

Back in May of 207 the Belknap County Convention met to discuss filling the vacancy left by the resignation of the County Sheriff. This vacancy, in essence, left an unexpired term of an elected office. At that session, it was clear that there were seven candidates for the position. The Convention agreed to interview all seven candidates, making it clear that their letters of recommendation and resumes were on file.

In early June 2007 the Convention voted to enter nonpublic session, at that point interviewed the seven candidates ultimately choosing two candidates. The Convention disclosed the names of the last two candidates but not the names of the other applicants. After a request to review all the applicants was denied, the petitioners alleged a violation of the Right to Know Law, RSA 91-A. This was denied by the trial court which indicated that the privacy rights of the seven candidates outweighed the publicís interest in disclosure.

Later, in June 2007, the Convention then proceeded to hold the election of the new Sheriff by using a secret ballot. Wiggin was elected as Sheriff by a vote of 10 to 4 with one abstention.

In filing their appeal to the Supreme Court, the petitioners alleged that the trial court erred when it allowed the Convention to conduct the entire process by non-public sessions, erred when it failed to invalidate Wigginí appointment and finally, that it erred when they were denied access to the documents sought.

The respondents had argued that the filling of the position in nonpublic sessions was permitted under RSA 91-A: 3 II (b). That particular section provides for the appointment of a public employee by nonpublic sessions. However, Justice Duggan in delivering the Courtís decision, wrote: "Thus we decline to hold that the hiring of a public employee includes appointment of an interim sheriff." Further, "We conclude that the convention was required to fill the vacancy in the office of the sheriff in public session." The Court held that the trial court unsustainably exercised its discretion when it failed to invalidate the conventionís appointment of Wiggin.

The Court went on to review the issue of the disclosure of public records. In doing so, it used a three-prong analysis. First, they evaluated whether there is a privacy right at stake that would be invaded by the disclosure. Secondly, they assessed the publicís interest in disclosure. And finally, they balanced the public interest in the disclosure and the governmentís interest in non-disclosure and the individualís privacy interest in non-disclosure.

The Court held that: "We see no reason why candidates who apply for a vacancy in an elected office should have a greater privacy interest than candidates who run for that same office during an election year." However, the Court did add the caveat that there may be a need for redaction, by in camera review, but that the burden was on the respondents to demonstrate what, if any, information should be redacted and in accordance with the balancing principle of prong three above.

The Court maintained in conclusion: "Finally, in balancing the foregoing interests, we conclude that the publicí interest in disclosure significantly outweighs the privacy interests of the candidates."

Douglas Lambert, pro se; and Thomas Tardif, pro se, (Mr. Lambert and Mr. Tardif on the brief, and Mr. Tardif orally).

Rannsmeier & Spellman, Professional Corporation, of Concord (Daniel J. Mullen on the brief and orally), for the defendants.


DWI Law- Enhanced Penalties

State of New Hampshire v. Shannon Gallagher & Timothy Hughes. 2007-553

Whether a person convicted of DWI pursuant to RSA 265:82 may be subject to enhanced penalties under RSA 265-A:18.

Defendant Gallagher was convicted of DWI under RSA 265:82. Defendant was then subsequently arrested for DWI as a subsequent offense. He entered a plea of guilty and was sentenced in accordance with the enhanced provisions of RSA 265-A:18. However, in 2007, the legislature revamped the DWI statutes. The penalty provisions contained in RSA 265-A:18 omitted to mention the old statute as a basis for enhanced penalties. Therefore, Gallagher argued that he could not be subject to the enhanced penalty. The Court stated that it had undertaken a similar analysis in State v. Callaghan 1985. In remanding the case to the District Court, the Court in essence held that: "Merely because the particular DWI statute under which he was convicted is not specifically named in [the sentencing statute] would be elevating form over substance." The Callaghan decision addressed a similar revamping of the DWI laws that had also omitted the mention the old statute for enhanced penalty purposes in the early 1980s.

Kelly A. Ayotte, attorney general (Diana Fenton, attorney, on the brief and orally), for the State.

Theodore Lothstein, assistant appellate defender, of Concord, on the brief and orally, for the Defendant.

DWI Law Ė Recantation of a Refusal

The State of New Hampshire v. Peter Johnson 2005-625.

Whether the trial court erred in giving the jury instructions on the issue of recantation of a refusal.

This case concerned the defendantís arrest for DWI and his refusal to submit to a breath or blood sample. After the defendant had been arrested for DWI, he was read the ALS form at least three times by the arresting officer. Some 45-50 minutes had elapsed at which point the defendant was given an extra five minutes to make a decision as to testing. After those five minutes, he was deemed a refusal by the arresting officer. After the defendant was booked and processed, he then stated that he had changed his mind and would now submit to a test. He was told by the arresting officer that since he had now been released from police custody that he would not be tested.

At the trial, the defendant asked to have his proposed jury instruction on refusal to test submitted to the jury. However, the trial court declined and instead gave its own jury instruction on the issue. The Court reviewed the trial courtís instruction and found that it had informed the jury of the Stateís burden and that they could consider the refusal as evidence of guilt. The defendant also argued that the Court should consider its holding in Harlan v. State, 1973. The Court pointed out that Harlan concerned the administrative penalty for a refusal through the Division of Motor Vehicles unlike this case. In the case at hand, RSA 265-A: 10, the Court noted is an evidentiary statute.

Kelly A. Ayotte, Attorney General, (Diana E. Fenton, attorney, on the brief, and Susan P. McGinnis, senior assistant attorney general, orally), for the State.

Law Offices of Robert J. Moses, of Amherst (Robert J. Moses on the brief and orally), for the defendant.

Appellate Procedure and Ex-Post Facto Laws

The State of New Hampshire v. Judith Matthews 2007-244.

Whether the superior courtís reliance on a recent amendment to RSA 625:9 violates the defendantís constitutional guarantee against retrospective laws under Part 1 Article 23 of the New Hampshire Constitution.

As a result of an incident on May 27, 2006 the defendant entered a plea of guilty to Simple Assault as a Misdemeanor A and was sentenced to a fine in the amount of $500.00 with $300.00 suspended. No term of incarceration was imposed. Thereafter, the defendant moved to have a trial de novo in the superior court. After the case was docketed, the State filed a Motion to Remand back to the district court. The relevant portion of the amendment to RSA 625:9 reads:

"VIII. If a person convicted of a class A misdemeanor has been sentenced and such sentence does not include any period of actual incarceration or a suspended or deferred jail sentence or any fine in excess of the maximum provided for a class B misdemeanor in RSA 651:2, IV (a), the court shall record such conviction and sentence as a class B misdemeanor."

Justice Hicks gave the Courtís reasoning in affirming the decision of the superior court as: "As such, the appropriate focus in ex post facto analysis is not on whether the law imposes disadvantages or additional burdens, but rather on whether it increases the punishment for or alters the elements of an offense, or changes the ultimate facts required to prove guilt. Accordingly, a change in procedural law that does not effect substantive rights by inflicting greater punishment, altering the elements of an offense, or changing the ultimate facts required to prove guilt, is not ex post facto, even if the procedural changes operate to the defendantí disadvantage."

Kelly A. Ayotte, attorney General, (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Sampderil & Welsh, PLLC, of Exeter (Richard E. Sampderil, on the brief and orally), for the defendant.

Sex Offender Registration Fee-Tax-Ex Post Facto Laws

Philip S. Horner v. The Governor, State of New Hampshire 2007-668.

Whether the imposition of the Sex Offender Fee was a tax and whether or not it amounted to a violation of the defendantís rights to be free from retrospective laws.

This case concerned the defendantís requirement to pay the $17.00 fee to the State Sex Offender registry. The defendant was required, after conviction, to pay the fee as mandated by RSA 651-B: 11, 1.on a semi-annual basis. The Chief Justice pointed out the distinction between a tax and a fee. First, taxes are enforced contributions to raise revenue. Second, a fee must be incidental to the implementation of a regulatory program and cannot be primarily used to raise revenue. Third, he noted that in determining the proper characterization of a statute, "We must consider the statuteís declared purpose as well as its essential characteristics."

The Chief Justice then pointed out that the $17.00 charge "is not intended to raise revenue but rather to support the governmental regulatory activity made necessary by the actions of those who are required to pay the charge." Finally, on the defendantís argument on ex post facto laws, the Court held that since one is only required to do so upon release from prison, it has no retrospective applicability.

Philip S. Horner, pro se, and Richard E. Sampderil, of Exeter, (Mr. Horner on the brief, and Mr. Sampderil orally) for the plaintiff.

Kelly A. Ayotte, attorney General, (Karen Schlitzer, assistant attorney general, on the memorandum of law and orally), for the defendants.

Domestic Relations

In the Matter of Richard R. Lemieux and Joanne Lemieux 2007-227.
Reversed and remanded.

Whether the trial court erred when it found that the petitioner had failed to state a claim for reformation based upon mutual mistake of law.

The main issue in this case was whether the trial court had erred when it found that the petitioner had failed to state a claim for reformation based upon mutual mistake of law. Petitioner and respondent were married in 1969 and divorced in 1990. Petitioner had a federal pension plan from the civil service. The qualified domestic relations order stated:

that, "The respondent is awarded 50% of the value of the petitionerís pension plan as of the date of the entry of the Libel for Divorce, pursuant to 29 USC Section 1056."

The United States Office of Personnel Management calculated the respondentís share at $1,354.93 per month as of the date that the petitioner became eligible for retirement. The petitioner challenged the decision stating that according to the qualified domestic relations order, it should be calculated as of the date of the entry of the Libel for Divorce which would make the respondentí share $794.50.

According to the regulations governing civil service retirement benefits, the divorce decree had to "either state the dollar amount of the award or explain with sufficient clarity that salary adjustments, as well as service after the date of the decree are to be disregarded in computing the former spouseís share." The Court then held "that the language of their stipulation failed to accomplish this was due to their mutual misapprehension of the legal effect of the language they used." The Court held that there were sufficient allegations in the petitionerís brief to state a claim for reformation.

Cook & Molan, P.A., of Concord (Shawn Sullivan on the brief and orally), for the petitioner.

McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Jeanmarie Papelian and Joel T. Emlen on the brief, and Mr. Emlen orally) for the respondent.

Domestic Relations- Subject matter jurisdiction

Daniel Daine v. Lisa Daine 2007-565.
Vacated and dismissed.

Whether Small Claims Court had subject matter jurisdiction over debts that occurred between the time of filing for divorce and the entry of the final divorce decree.

This case concerned a small claims suit that was brought by one party to a divorce, Daniel Daine. Daine sought and was awarded $3,317.61 for bills he had paid between the time of filing for divorce and the final divorce decree. The award was made by the Small Claims Court. The defendant argues that the Doctrine of Res Judicata should have prevented the case from being heard in Small Claims Court. Chief Justice Broderick delivered the Courtís reasoning for vacating and dismissing the case: "The parties divorce decree, which contains provisions regarding the allocation of debt related to the marital homestead, was issued by the Littleton Family Division, which retains continuing jurisdiction. We conclude that the district court lacked subject matter jurisdiction over this case."


Marilyn Bates v. Vermont Mutual Insurance Company 2007-628

At issue was whether Vermont Mutualí the policy was an "occurrence" or "claims made" policy for the purposes of notification of expenses by a claimant.

In this case Marilyn Bates was injured when she fell down steps at the Milford Mill an apartment complex. The Mill is owned by Milford Mill Limited Partnership. It was insured through a policy issued by Vermont Mutual. Stewart Property management managed the property and they were insured by OneBeacon Insurance.

Bates had medical bills that amounted to $16,080. Bates Counsel forwarded the bills together with photographs and asked that they be sent to the insuredís carriers. After the claim was denied, Bates brought suit against Milford Mills and Stewart alleging negligence and seeking damages for her injuries. At the discovery stage, it was revealed that Stewart had a policy which included $10,000.00 of medical expense payment. That amount was then paid to Bates. Bates then sought to have Vermont Mutual pay $5,000.00 for medical expenses. Vermont Mutual refused.

Vermont then argued that according to their policy, the expenses must be reported to them within 12 months of the triggering event. However, the policy did not specify who was to make the report. Vermont Mutual asserted a lack of notice as a defense. The significance in the distinction between the "occurrence" and "claims made" is that in the occurrence policy, the insurer would have to demonstrate prejudice to deny coverage.

If the policy is a claims made policy, then there is no requirement to demonstrate prejudice by the insurer because there arises a presumption that there is prejudice if the claim is not timely made.

The Court, Chief Justice Broderick, then reasoned that: "We must believe that, on balance, the section and the policy are more correctly classified as occurrence based." Further, "Having failed to meet its burden of demonstrating that it had been prejudiced by the late reporting of Batesí medical expenses, Vermont Mutual cannot deny her coverage on that basis."

Cronin & Bisson, P.C., of Manchester (John F. Bisson on the brief and orally), for the petitioner.

Wiggin & Nourie, PA of Manchester (Gary M. Burt and Mary Anne Dempsey on the brief and Mr. Burt orally), for the respondent.

Landlord & Tenant

Great Tradition Home Builders, Inc. v. Marie OíConnor 2007-597.

Consequences in an eviction action for failure to satisfy the statutory notice requirement.

The defendant resided as a tenantĖat-will at the plaintiffís apartment complex in Rochester. As a result of alleged "false and slanderous" accusations, Great Traditions served the defendant with an eviction notice. The eviction notice specified these alleged statements as the basis for the eviction. The defendant had argued that since the plaintiff had not complied with the statutory notice requirement of RSA 540:3, III, that the action should be dismissed. The District Court agreed. The relevant portion of the controlling statute is:

    "III. The eviction notice shall state with specificity the reason for the eviction."

The Court held that since this portion of the statute had not been complied with, the dismissal of the eviction action was correct.

Casassa & Ryan, of Hampton (Daniel R. Hartley on the brief and orally) for the plaintiff.

Hanlon & Zubkus, of Rochester (Robert A. Zubkus on the brief and orally) for the defendant.

Probate Law

In Re Estate of David J. Bourassa 2007-435.

Whether unmarried partner was entitled to spousal share of decedentís estate.

Petitioner, Deborah Beck, began a romantic relationship with the decedent, David Bourassa, in the 1990s out of which a child was born. Decedent and petitioner lived together, shared domestic responsibilities but were never married. After the death of Bourassa, petitioner sought a spousal share of decedentís estate. The Probate Court held that petitioner failed to demonstrate that she and Bourassa acknowledged each other as husband and wife in accordance with the requirements of RSA 457:39.

In order to be entitled to a spousal share, the petitioner had to demonstrate that for a period of three years preceding the death of Bourassa, that (1) they cohabited, (2) acknowledged each other as husband and wife; and (3) were generally reputed to be husband and wife in the community. See Delisle v. Smalley, 96 N.H. 58, 59 (1949).

After two days of hearings, the Probate Court found that though they had cohabited for three years, the petitioner had not demonstrated that "they acknowledged each other as husband and wife and were generally reputed as such in the community." The Probate Court had noted that a majority of witnesses had testified that Bourassa had not acknowledged Beck as his wife. "Indeed, two of Bourassaí daughters testified that Beck had told them that she was not and never would be "anybodyís common law." One witness even testified that Beck associated the word "wife" with "servant" and refused to be anybodyís servant.

Justice Duggan then went on to address a charge made by defense counsel accusing the probate Judge of "inattentiveness, bias and confusion." The Court held that the accusations were "utterly baseless" and that they were "inconsistent with the professionalism we expect from practitioners before this court." Justice Duggan then referenced the New Hampshire Bar Association Professionalism Creed and cautioned that, "Practitioners would be wise to raise such accusations in the future only when they are warranted, and not merely where they result from dissatisfaction with the trial courtís decision."

Chubrich & Harrington, P.A., of Portsmouth (Michael E. Chubrich on the brief and orally), for the petitioner.

Boynton, Waldron, Doleac & Scott, P.A., of Portsmouth (Francis X. Quinn, Jr. and Amy C. Mackin on the brief, and Mr. Quinn orally for the Estate of David J. Bourassa.


Nine A, LLC v. Town of Chesterfield, 2007-475.

Whether the plaintiffís proposed variances violated the spirit of Chesterfieldí zoning ordinance and were contrary to the public interest.

At issue was a six-acre tract of land in Chesterfield that was bordered on one side by Spofford Lake and on the other side by Route 9A. The relevant zoning ordinance provides that: "All lots in the Spofford Lake District must be at least two acres in size and have at least 200 feet of road frontage. While the lot size and road frontage requirements may be reduced in cluster developments, cluster developments are prohibited on parcels that are less than 30 acres in size."

The two zoning variances at issue were filed on March 2006 and June 2006. "In March 2006 the plaintiff applied to the ZBA for two area variances, one from the 200Ėfoot frontage requirement and the second from the two-acre minimum requirement in the Spofford Lake District." The purpose behind the variance was to develop the six-acre parcel into seven single-family lots ranging in size from .70 acres to .95 acres. The Court held that the plaintiff had not met his "burden of proving that the proposed use was not contrary to the public interest and was consistent with the spirit of the ordinance."

Bragdon & Berkson, P.C., of Keene (H. Neil Berkson and Kelly E. Dowd on the brief, and Mr. Berkson orally).

Tower, Crocker & Mullins, P.A., of Jaffrey (Thomas P. Mullins on the brief and orally, for the defendant.



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