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Bar News - September 5, 2008


US District Court Decision Listing: June 2008

* Published

CONTEMPT - CONSENT DECREE

7/10/08 Cassandra Hawkins v.
Commissioner, New Hampshire Department of Health and
Human Services
Civil No. 99-cv-143-JD, Opinion No. 2008 DNH 125

The plaintiff class brought suit seeking dental services for children under Title XIX of the Medicaid Act. After more than four years of litigation, the class and the Commissioner reached a settlement, and the court issued a consent decree. After several years, the class filed a motion contending that the state was not complying with its obligations under the decree and asked for a contempt order. The court construed disputed terms of the decree, clarified the standard for contempt, and concluded that although the state was not complying with some of the terms of the decree, the class had not provided clear and convincing evidence of contempt. Therefore, the class’s motion was denied. 22 pages. Judge Joseph A. DiClerico, Jr.


ELECTION LAW; CIVIL PROCEDURE: Standing

3/27/08 Fred Hollander v. John McCain and the Republican National Committee
Civil No. 08-cv-099-JNL, Opinion No. 2008 DNH 129*

Based on the United States Constitution’s provision that only a "natural-born citizen" is eligible to be President of the United States, the plaintiff sought a declaratory judgment that Senator John McCain, the presumptive Republican nominee for the Presidency, is ineligible for that office due to his birth in the Panama Canal Zone. The court granted the defendants’ motion to dismiss the case, ruling that the plaintiff lacked standing under his theories that (1) he had a legally cognizable interest in the constitutional eligibility of an elected official, (2) McCain’s participation in the New Hampshire Republican primary had made it more difficult for the plaintiff’s chosen candidate to win, and (3) if McCain were elected but were subsequently not allowed to hold the office due to his alleged ineligibility, the plaintiff would be "disenfranchised." 19 pages. Judge Joseph N. Laplante.


HABEAS CORPUS

7/24/08 William P. Trainor v. United States
Civil No. 07-cv-352-JD, Opinion No. 2008 DNH 128

Trainor was convicted of and sentenced for conspiracy to commit wire fraud and multiple counts of wire fraud. Proceeding pro se, Trainor moved for relief from his conviction and sentence under 28 U.S.C. § 2255. The court concluded that Trainor’s challenge to his restitution obligations was not cognizable under § 2255 and that by failing to raise several claims on direct appeal, he had waived those claims. The court also concluded that Trainor failed to meet the requirements for proving his claims of ineffective assistance of counsel. Petition denied. 25 pages. Judge Joseph A. DiClerico, Jr.


7/15/08 Fernandez v. NHSP Warden
Case No. 06-cv-281-SM, Opinion No. 2008 DNH 126

The petitioner, serving a sentence for second-degree murder, sought habeas corpus relief on six grounds, each of which was denied. In addition to raising three evidentiary issues, the petitioner argued that his incarceration is unconstitutional because: (1) the trial court declined to ask prospective jurors two voir dire questions intended to probe possible bias against Hispanic individuals and persons from Lawrence, Massachusetts; (2) the trial court did not individually voir dire a juror who had been seen apparently sleeping during part of the trial; and (3) the prosecutor referred to the victim’s killing as a "murder" and elicited testimony that also used that term. 18 pages. Chief Judge Steven J. McAuliffe.

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

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