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Bar News - January 16, 2009

NH Supreme Court At-a-Glance December 2008


Criminal Law

The State of New Hampshire v. Douglas Jenot, No. 2006-908
December 18, 2008

Whether the loss of the transcript from defendantís first day of trial required reversal of his conviction.

Whether the trial court erred in barring defendantís testimony that he took direction from his accomplice to avoid revelation that his accomplice had sexually assaulted him when he was younger.

Defendant and his accomplice forcibly entered the victimís apartment and sexually assaulted her. During trial, defendant sought to testify that he took direction from his accomplice to avoid revelation that his accomplice had sexually assaulted him when he was younger. The State objected, arguing that the proffered testimony was irrelevant and a play for sympathy. The trial court excluded the testimony.

Defendant was convicted of aggravated felonious sexual assault and theft by unauthorized taking. After defendant filed his appeal, the trial court discovered that the audio recording for the first day of trial did not contain any of the dayís proceedings. Attempts to retrieve or reconstruct the data from the trial courtís computer were unsuccessful. The Supreme Court ordered the trial court to compile a reconstructed record in lieu of a transcript which included witness testimony, the court monitorís log notes, the attorneysí trial notes, and the transcript from the reconstruction hearing.

On appeal, defendant was represented by new counsel. Defendant argued that: (1) the loss of the first dayís record required a new trial, and (2) the trial court erred in excluding defendantís proffered testimony.

Ruling that defendant was not entitled to a new trial, the Supreme Court adhered to a majority view that the retention of new counsel on appeal does not, by itself, relieve a defendant of his burden to demonstrate "specific prejudice" resulting from an incomplete record. Defendant failed to show prejudice because his only complaint about the first day of trial lacked merit. Defendantís trial counsel had moved for a change of venue but agreed to try to impanel a jury and to renew the motion if he was unable to do so. Trial counsel did not renew the motion, suggesting that trial counsel believed he had obtained an impartial jury.

Ruling that the trial court did not unsustainably exercise its discretion in excluding defendantís proffered testimony, the Court found that the evidence was of limited probative value which was outweighed by its potential for prejudice. While the threat of disclosing embarrassing information can place considerable pressure on a person, it does not excuse the personís unlawful actions. Jurors could have felt sympathy for defendant, basing their decision on defendantís status as a victim rather than on the evidence of the crime and the relevant law.

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

The State of New Hampshire v. Robert Theriault, No. 2007-601
December 4, 2008

Whether the prostitution statute was constitutionally overbroad as applied to defendant.

Defendant offered to pay a young woman and her boyfriend $50.00 per hour to have intercourse while defendant videotaped them.

Defendant was charged with misdemeanor prostitution under RSA 645:2, I(f) for offering to pay a person to engage in "sexual penetration" with another person. Unlike "sexual contact," "sexual penetration" under the criminal code does not require that the conduct be reasonably construed as being for the purposes of sexual arousal or gratification. Citing the federal constitutional holding that "pornography is protected when it is not obscene," the Court found that it would infringe upon an area of speech protected by the State Constitution to uphold defendantís conviction. Had the State alleged and proved that defendant acted "for the purpose of sexual arousal gratification," defendantís conduct would not be constitutionally protected.

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

The State of New Hampshire v. Diego Duran, No. 2007-611
December 5, 2008
Affirmed in part, reversed in part, and remanded

Whether the evidence was sufficient to support a jury instruction for accomplice liability.

Whether the Court should overturn State v. Harnum, 142 N.H. 195 (1997), which held that a defendant receives pretrial confinement credit only for that time spent "awaiting and during trial" and in the "custody" of New Hampshire authorities.

The evidence established that after punching the victim, defendant stomped on the victimís head with his foot. Another man admitted that he had joined defendant in the assault and that his foot had also touched the victimís head, leaving blood on his shoe. The victim died six weeks later from blunt force head trauma resulting from at least two blows. A jury convicted defendant of manslaughter.

On appeal, defendant challenged the trial courtís jury instruction on accomplice liability. Affirming the trial court, the Supreme Court held that there was more than the "minutia or scintilla of evidence" required to support the accomplice instruction.

Defendant succeeded, however, on the issue of pre-trial confinement credit. Relying on State v. Harnum, 142 N.H. 195 (1997), the trial court had refused to grant defendant pre-trial confinement credit for the time defendant spent awaiting extradition in Colombia. Reversing the trial court and overturning Harnum, the Supreme Court found that the majority in Harnum had failed to give full consideration to the plain language of the statute addressing pre-trial confinement (RSA 651-A:23). By overturning Harnum, the Supreme Court joined the "overwhelming majority" of other jurisdictions that award pre-trial confinement credit for time spent awaiting extradition.

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

Juvenile Deliquency

In Re: Kirsten P., No. 2007-877
December 5, 2008

Whether the 30-day time limit under RSA 169-B:14, II begins anew when a juvenile delinquency petition is dismissed on motion by the juvenile.

A juvenile successfully moved to dismiss a juvenile delinquency petition ("first petition") based on the Stateís failure to effect proper service pursuant to RSA 169-B:7. After the State filed a new petition ("second petition"), the juvenile again moved to dismiss, arguing that her right under RSA 169-B:14, II to an adjudicatory hearing within 30 days of arraignment had been violated. Although the adjudicatory hearing date for the second petition was within 30 days of the arraignment on the second petition, it was 56 days after the arraignment on the first petition. The trial court denied the juvenileís motion and this appeal followed.

On appeal, the Supreme Court held that the 30-day time limit under RSA 169-B:14, II began anew upon the juvenileís arraignment on the second petition when the first petition was dismissed on motion by the juvenile. The Court distinguished this case from one in which the State voluntarily dismisses an indictment and then re-indicts the defendant. When the State voluntarily dismisses an indictment, the speedy trial clock begins to run from the filing of the first indictment to discourage the State from using voluntary dismissals whenever time is running out on the prosecution. Here, the first petition was dismissed at the juvenileís request and the State had not attempted to nullify the juvenileís right to a speedy trial.

Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State. Theodore Lothstein, assistant appellate defendant, on the brief and orally, for the defendant.

Mediation and Arbitration

Nancy J. Lamarche v. Stephanie A. McCarthy, No. 2008-355
December 31, 2008
Three questions on interlocutory transfer answered.

Whether the $50.00 mandatory fee under Superior Court Temporary Rule 170 is constitutional.

Whether a matter involving a temporary rule is subject to interlocutory transfer.

Whether the Office of Mediation and Arbitration (OMA) had standing to intervene in the matter.

Plaintiff brought a personal injury suit against defendant in Superior Court. On defendantís motion to waive the $50.00 mandatory fee under Superior Court Temporary Rule 170, the trial court ruled that requiring the parties to pay $50.00 to enter the mandatory dispute resolution process violated Part I, Article 14 of the NH Constitution. OMA intervened and sought an interlocutory transfer which the trial court granted.

Ruling on the transferred questions, the Supreme Court held that OMA had standing to intervene in the matter. Although OMA should have filed a small claims action or a declaratory judgment petition to recover the mandatory fee, its interest in the Courtís constitutional analysis was sufficient to confer standing. The Court also found that the temporary nature of Rule 170 did not preclude an interlocutory transfer.

On the merits of the constitutional question, the Court declared the mandatory fee constitutional. Unlike other fees declared unconstitutional, such as payment to a probate court to hold a special session (In re Estate of Dionne, 128 N.H. 682 (1984)), the mandatory fee did not "smack[] of the purchase of justice" or resemble "bribery," the "mischief" forbidden by Part I, Article 14. The Court did find, however, that plaintiffs and defendants are situated differently with respect to the mandatory fee. Plaintiffs are always required to pay fees to initiate actions and failure to pay such fees may result in their actions being dismissed. Defendants, on the other hand, are not required to pay fees to access the courts. Accordingly, a defendantís failure to pay the mandatory fee should not, alone, bar further litigation. The State may take action to collect the fee but the trial court should inform defendants that their refusal to pay immediately will not result in inadequate or unfavorable treatment.

Simpson & Mulligan, PLLC, of Lebanon (Gary Apfel on the brief and orally), for the plaintiff and defendant. Howard J. Zibel and Karen J. Borgstrom, of Concord (on the brief), for the intervenor The Office of Mediation and Arbitration. Kelly A. Ayotte, attorney general (Suzanne M. Gorman, senior assistant attorney general, on the brief and orally), for the State of New Hampshire, as amicus curiae.

Professional Responsibility

Peter Goodrich & a v. Morgan Goodrich & a., No. 2007-867
December 4, 2008
Two questions on interlocutory appeal answered.

Whether the trial court used the proper legal standard in determining whether the attorney-client privilege transfers when ownership of a corporation changes hands.

Whether the trial court properly applied the standard in this case.

This case arises out of protracted litigation between Morgan Goodrich and his sons, Jeffrey and Peter Goodrich. The litigation involved Morganís failure to transfer stock in a surveying and engineering company ("T&M") to Jeffrey and Peter, and Morganís removal of Jeffrey from T&Mís Board of Directors (BOD). Morgan replaced Jeffrey on the BOD with Attorney K. William Clauson, whose law firm represented Morgan in the resulting litigation. After the superior court entered judgment against Morgan in one of the matters, Morgan transferred T&Mís stock to Jeffrey and Peter. Jeffrey and Peter dismissed T&M ("Old T&M") as a defendant and added T&M ("New T&M") as a plaintiff. New T&M no longer performs surveying and engineering services.

In continued proceedings, Attorney Clauson asserted the attorney-client privilege for certain conversations he had had with Old T&M and Morgan while serving as their counsel. Jeffrey, Peter, and New T&M moved to disqualify Attorney Clauson pursuant to Rule 1.9(a) of the NH Rules of Professional Conduct. The trial court denied the motion, ruling that New T&M was not a "former client" of Attorney Clauson and that the attorney-client privilege had not transferred from Old T&M to New T&M by Morganís stock transfer. This interlocutory appeal followed.

On appeal, the Supreme Court endorsed the trial courtís use of a "practical consequences" standard but found that the trial court had erroneously applied the standard in this case. When ownership of a corporation changes hands, whether the existing attorney-client relationship transfers to the new owners turns on "practical consequences," not on the formalities of a particular transaction. When efforts are made to run the pre-existing business entity and manage its affairs, successor management stands in the shoes of prior management and controls the attorney-client relationship for matters concerning the companyís operations. Here, the trial court unduly focused on New T&Mís failure to continue Old T&Mís surveying and engineering services. The Supreme Court held that while this fact had some relevance, it was not the "linchpin" of the analysis. The proper focus was on whether control of Old T&M had passed to Jeffrey and Peter with Morganís stock transfer. Finding that control had passed to Jeffrey and Peter, the Court noted that T&M continued to operate as a New Hampshire Corporation in good standing and that its legal status was not interrupted by the change of ownership. Further, New T&M did continue to own, manage, and lease a commercial building acquired by Old T&M.

Wiggin & Nourie, PA, of Manchester (Thomas J. Pappas & a. on the brief, and Mr. Pappas orally), for the plaintiffs. Clauson Atwood & Spaneas, of Hanover (George E. Spaneas on the brief and orally), for the defendants.

Subject Matter Jurisdiction - Standing

Libertarian Party of New Hampshire v. Secretary of State, No. 2008-246
December 19, 2008
Dismissed for lack of standing.

Whether the NH Republican Committee had standing to pursue an appeal challenging the trial courtís remedy for the sale of voter lists by the NH Democratic Party pursuant to a statute deemed unconstitutional by the trial court.

On July 18, 2007, RSA 654:46 went into effect. The statute required the Secretary of State, upon request of a "party," to furnish certain lists of voting information to that "party." At the time, the only entities in the State recognized as parties were the NH Republican State Committee (NHRSC) and the NH Democratic Party (NHDP). The Libertarian Party of New Hampshire (LPNH) brought a petition seeking to declare the statute unconstitutional and to enjoin the Secretary of State from distributing the voter lists to the NHRSC and the NHDP. The NHDP intervened in the suit but the NHRSC did not.

After the trial court denied the LPNHís request for a preliminary injunction, the NHRSC and the NHDP obtained the voter lists from the Secretary of State. The NHRSC gave the lists to at least one party without charge, while the NHDP sold the lists to various groups.

After the lists were distributed, the trial court declared RSA 654:46 unconstitutional and held a hearing to fashion a remedy. The NHRSC intervened and argued that the NHDP should be required to disgorge the funds it received from selling the voter lists. The trial court issued an order preventing the NHRSC and the NHDP from further distributing the lists but did not require the NHDP to disgorge any funds. The NHRSC appealed from this order.

On appeal, the Supreme Court held that the NHRSC lacked standing to appeal because the NHRSC did not suffer legal harm from the trial courtís order. The Court found that any financial or political advantage gained by the NHDP from selling the lists was not an injury, "in any meaningful sense," to the NHRSC.

New Hampshire Civil Liberties Union, of Concord, for the plaintiff, filed no brief. Kelly A. Ayotte, attorney general, for the defendant, filed no brief. Douglas, Leonard & Garvey, PC, of Concord (Charles G. Douglas, III on the brief, and Richard Lehmann orally), for intervenor New Hampshire Republican State Committee. Finis E. Williams, III, of Concord, on the brief and orally, and Wadleigh, Starr & Peters, of Manchester (Kathleen Sullivan on the brief), for intervenor New Hampshire Democratic Party.

Workerís Compensation

Appeal of Roderick Jenks, No. 2007-817
December 10, 2008

Whether petitioner who provided volunteer services to a corporation was an employee of the corporation for the purposes of the Workerís Compensation Law.

A childrenís charity executed a contact with the New Hampshire International Speedway (NHIS) by which the charity promised to provide volunteers to provide services to NHIS during a race weekend in July of 2006. In exchange, NHIS promised to pay the charity $7.00 for every hour worked by every volunteer. Petitioner was one of the volunteers and was assigned to provide security services. When the weekend began, NHIS provided petitioner with a shirt and a hat indentifying his role as a security official and granted him a discount at the NHIS gift shop and concession stands. While riding on a golf cart en route to his security assignment, petitioner fell and suffered a severe head injury.

Petitioner successfully sought workerís compensation benefits from NHIS. NHIS appealed, arguing that petitioner was not an employee of NHIS and, thus, not entitled to workerís compensation benefits. The CAB agreed with NHIS and reversed the hearing officerís ruling. The Supreme Court affirmed.

The Workerís Compensation Law defines "employee," in relevant part, as "any person in the service of an employerÖ under any express or implied, oral or written contract of hireÖ." To establish a "contract of hire," the claimant must have received or expected to receive payment of some kind. In this case, the CAB reasonably found that petitioner never expected to receive payment from either the charity or NHIS and that the parties did not intend NHISí charitable donation to constitute payment for petitionerís services. Although the shirt, hat, and discounts provided by NHIS could constitute payment under some circumstances, the CAB could have reasonably found that they did not in this case. Unless understood by the parties to constitute the equivalent of wages, mere gratuities or gifts are not considered payment under a contract of hire.

Decato Law Office, PC, of Lebanon (William A. Whitten on the brief and orally), for the petitioner. Sulloway & Hollis, PLLC, of Concord (James E. Owers and Timothy A. Gudas on the brief, and Mr. Owers orally), for the respondent.

Zoning - Preemption

Lakeside Lodge, Inc. v. Town of New London, No. 2008-247
December 5, 2008

Whether state law preempts a boat use limit imposed by the Town of New London.

Lakeside owned property on Lake Sunapee that included a private dock used by Lakesideís three owners since at least the 1980ís. In 1991, the Town enacted a zoning ordinance prohibiting use of "common areas" for lake access except in compliance with its provisions and with planning board approval. A "common area" was defined as an area "used by a group of [three] or more unrelated persons or by an association, club or organization consisting of [three] or more members." In 1995, Lakeside completed substantial dock repairs after receiving approval from the NH Department of Environmental Services (DES). According to the Town, Lakesideís use of the dock intensified after these repairs. In 2002, the Town alleged that use of Lakesideís dock by multiple, unrelated persons violated the 1991 ordinance.

In 2007, after proceedings before the Town Selectmen and the ZBA, the ZBA ruled that because use by Lakesideís three owners predated the 1991 ordinance and because users typically invite guests, there could be no more than six users and six boats at the dock at any one time. Essentially, the ZBA attempted to strike a balance between the 1991 ordinance and Lakesideís pre-existing, non-conforming use. The Superior Court affirmed. On appeal, Lakeside raised several issues but the issue of preemption was dispositive.

Holding that state law preempted the Townís 1991 boat use ordinance, the Supreme Court cited an extensive list of state statutes and DES regulations clearly revealing the Stateís intent to control the use of public waters and to avoid piecemeal on-water regulation by towns and municipalities. These statutes include RSA ch. 233-A (Access to Public Waters), RSA ch. 270-D (Boating and Water Safety on New Hampshire Public Waters), and RSA ch. 487 (Control of Marine Pollution and Aquatic Growth). The Court noted that DESí approval of Lakesideís 1995 dock repairs constituted an "imprimatur" by the State on Lakesideís use of the dock. Presumably, the Town received notice of its right to participate in DESí approval process but chose not to exercise that right.

Orr & Reno, PA, of Concord (James P. Bassett and Jeffrey C. Spear on the brief, and Mr. Bassett orally), for the petitioner. Upton & Hatfield, LLP, of Concord (Barton L. Mayer on the brief and orally), for the respondent.

Zoning - Availability of Equitable Waiver

William Schroeder v. Town of Windham, No. 2008-147
December 18, 2008

Whether landownersí request for an equitable waiver involved a setback restriction or a use restriction, which cannot be waived under RSA 674:33-a.

Landowners sought to construct a detached garage on a portion of their property adjacent to Canobie Lake and obtained a building permit from the Town of Windham. After construction began, concerns arose over the potential impact on surrounding wetlands and the Town issued a stop-work order. After the landowners rotated the garage to increase the distance between excavation and wetlands and repaired the silt fencing, the Town allowed construction to continue.

Abutters to the property challenged the construction, arguing that the garage fell within the Wetlands and Watershed Protection overlay district (WWPD). Under the townís zoning ordinance, construction of permanent buildings within the WWPD is prohibited. Ultimately, the ZBA granted the landownersí request for an equitable waiver which permitted the garage to remain in its current location despite its infringement on the WWPD. The superior court reversed, ruling that the relief granted by the ZBA constitutes waiver of a use restriction which cannot be waived under RSA 674:33-a. On appeal, the landowners argued that the ordinance prohibiting the construction of permanent buildings within the WWPD was a setback provision, which constituted a "dimensional requirement" that could be waived under RSA 674:33-a.

Affirming the superior court, the Supreme Court found that the ordinance was clearly a use restriction. Unlike an area variance, which is made necessary by the physical characteristics of the land and provides relief from strict compliance with physical standards such as setbacks, a use variance allows a landowner to engage in a prohibited use intended to preserve the characteristics of the surrounding area. In this case, the landownersí waiver was not compelled by the physical characteristics of the lot but by the plain and unambiguous language of the ordinance prohibiting permanent structures within the WWPD. Locating a permanent structure within the WWPD was not just an incidental deviation from strict compliance with the ordinance; it contradicted the goal of the ordinance to preserve the area by minimizing the risk of contamination.

Michael L. Donovan, of Concord, by brief and orally, for the plaintiffs. Wiggin & Nourie, PA, of Manchester (Gregory E. Michael and Nicole M. Barsamian on the brief, and Mr. Michael orally), for the intervenors, Andrew P. and Christine J. Lane, trustees of the A&C Revocable Trust. Beaumont & Campbell, PA, of Salem, for the Town of Windham, filed no brief.

Nancy DeAngelis is the founder of Legal Resource Strategies, PLLC, a practice in which she provides legal research and writing services to fellow lawyers on a contract basis. DeAngelis has been a member of the New Hampshire Bar since 1995. She is a graduate of Cornell University and the Northeastern University School of Law.

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