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Bar News - February 18, 2011


NH Supreme Court At-a-Glance - January 2011

By:

Administrative Law-Appeals from Board of Tax and Land Appeals

Appeal of City of Concord, No. 2009-491
Jan. 13, 2011
Vacated and Remanded

  • Whether the Board of Tax and Land Appeals (BTLA) erred in finding that the taxpayer, Home Care Association of New Hampshire (HCA), is entitled to a charitable tax exemption under RSA 72:23.
     
  • Whether the BTLA erred in denying the City of Concord’s motion to have an attorney sit as a board member.
The City of Concord (City) denied HCA’s request for tax exemption in 2006. HCA appealed to the BTLA following an unsuccessful abatement request to the Concord Board of Assessors. The BTLA found that HCA was entitled to a charitable tax exemption under RSA 72:23 for the portion of property owned and occupied by the HCA. After the only attorney member of the BTLA recused himself due to his involvement in litigation against the City, the BTLA denied the City’s request to have another attorney sit as a temporary board member on cases involving the City.

On appeal, the City argued that HCA did not satisfy the statutory requirements for a charitable tax exemption because the evidence did not support a finding that HCA administered its goals in a manner that provided a public benefit rather than a benefit to its own members. The Court concluded that entitlement to the charitable tax exemption required evidence that the charitable purpose is primary and not incidental. Because the BTLA did not determine whether HCA’s alleged public benefit was merely incidental to a primary purpose of benefitting its own members or whether HCA operated more like a trade or professional association, the Court vacated the BTLA’s decision and remanded the case for further proceedings consistent with this opinion.

The Court also agreed that another organization’s use and occupancy of the property owned by HCA was relevant to the determination of the extent to which HCA was entitled to a charitable tax exemption for the property. On remand, the Court directed the BTLA to examine what, if any, allocation of exempt and non-exempt use must be made due to the other organization’s activities and use of the property. The Court also declined to address the BTLA’s denial of the City’s request to seat an alternate attorney as a board member because that issue was not ripe for review.

Christopher Sullivan and Jason Tanguay (on the brief), Rath, Young & Pignatelli, Concord, for Home Care Association of New Hampshire. Adele Fulton, Gardner, Fulton & Waugh, Lebanon, for the City of Concord.


Appeal of David H. Johnson, No. 2010-045
Jan. 26, 2011
Reversed and Remanded

  • Whether the Board of Tax and Land Appeals (BTLA) erred in denying the petitioner’s appeal for an abatement of taxes assessed on his properties in the Town of Nelson (Town).
The petitioner owned two properties in the Town of Nelson, one lot with no road frontage containing a single family home and a smaller lot with frontage on Lake Nubanusit. Access to the house lot occurred by a right-of-way through a third party’s intervening lot. The Town assessed the value of the petitioner’s two properties together at $610,400. The petitioner filed for an abatement and thereafter, appealed to the BTLA challenging the joint assessment of his properties. The BTLA denied the petitioner’s appeal.

The petitioner argued that the Town’s assessment of both parcels together violated RSA 75:9. The Court rejected the Town’s contention that contact with or connection by a right of way renders two lots adjoining for purposes of RSA 75:9 and therefore, concluded that the petitioner’s lots were not adjoining under the statute.

The Court further held that if properties are not either adjoining or separate estates, then separate appraisals are mandated. The Court concluded that RSA 75:9 does not allow for the assemblage of non-adjoining parcels for appraisal and as a result, found that the BTLA erred in rejecting the petitioner’s separate appraisal of each property. However, the BTLA’s failure to follow 75:9 did not in itself entitle the petitioner to an abatement. The Court found it unnecessary to address the petitioner’s other arguments in light of its holding that RSA 75:9 required separate appraisals for the petitioner’s properties.

Mark D. Fernald, Fernald, Taft, Falby & Little, Peterborough, for the petitioner. Gary J. Kinyon, Bradley & Faulkner, Keene for the Town of Nelson.


Committee on Character and Fitness

Application of G.W., No. ADM-2009-024
Jan. 26, 2011
Application to the New Hampshire Bar denied

  • The applicant, G.W., sought admission to the NH Bar after the Court issued an order under Supreme Court Rule 42(5)(k) instructing the applicant to show cause why his application should not be denied after the Supreme Court of New Hampshire’s Standing Committee on Character and Fitness filed two adverse reports recommending denial of his admission.
The Court denied the applicant’s admission to the bar. The applicant applied to sit for the NH Bar examination seven times between 1991 and 2007. During this time, the applicant reported several criminal convictions and various financial obligations to the Standing Committee on Character and Fitness (the Committee). The applicant passed the February 2008 bar examination, but the Committee interviewed the applicant in May 2008 and thereafter, submitted a report recommending that he not be admitted to the bar.

A hearing occurred in January 2009 pursuant to the applicant’s request to address the Committee’s concerns. On February 17, 2009, the Committee submitted a second negative report concluding that the applicant failed to meet his burden at the hearing. The Committee cited the applicant’s history of criminal acts, financial irresponsibility and inability to handle his own affairs as grounds to deny his admission.

After the Committee’s second report, the Supreme Court ordered the applicant to show cause why his application for admission to the NH bar should not be denied. The applicant filed a responsive pleading and thereafter, a notice of appeal of a superior court decision affirming the administrative suspension of his driver’s license following his October 8, 2008 arrest for DWI Second offense. The Committee was unaware of that charge and the matter was remanded for consideration of the new information. The Committee agreed to defer any further hearings on the applicant’s bar admission until after the resolution of these matters.

On October 7, 2009, the Committee wrote to the applicant’s counsel reminding him of SC Rule 42(8) requiring that the oath of admission must be administered to an applicant within two years from the time the applicant is notified of successfully passing the bar examination. The Committee scheduled a hearing at the request of applicant’s counsel. The Committee also asked for an update on its consideration of the applicant’s character and fitness. The applicant disclosed additional charges in December 2009, including a false swearing charge and an attempted fraudulent handling of recordable writings charge, with both charges scheduled for trial in 2011. The Committee reconvened the hearing on the applicant’s admission application on March 11, 2010. The applicant proffered evidence of counseling sessions and a report about his court-ordered seven-day alcohol treatment program.

After the hearing, the Committee voted to confirm its earlier recommendation that the applicant be denied admission to the bar. The April 20, 2010 report supplemented the earlier report and identified three additional grounds for denying admission under SC Rule 42B(VII): Acts Involving Dishonesty, Fraud, Deceit or Misrepresentation, False or Misleading Statements or Omissions in the Application Process, and Criminal Acts. Criminal convictions, indebtedness and an inability to stay current on debts are not in themselves disqualifying. The Court found that the record, taken as a whole reflected an individual with a long history of evading his financial obligations as well as failing to accept responsibility for the consequences of his poor judgment and criminal behavior. The Court also concluded that the record established the applicant’s inability to handle his own affairs. The Court addressed the applicant’s lack of candor with the committee. Based upon its review of the evidence, the Court held that the applicant failed to meet his burden of proving, by clear and convincing evidence, his fitness to practice law.

Patrick T. Hayes, Baker & Hayes, Lebanon, for the applicant. Thomas V. Trevethick, deputy general counsel (on the brief) and James L. Dehart, general counsel, Concord, for the Committee on Character and Fitness.


Constitutional Law

New Hampshire Health Care Association & a. v. Governor & A., no. 2010-436
Jan. 21, 2011
Affirmed

  • Whether the trial court erred in ruling that the respondents, Governor John Lynch, and the Commissioner of the New Hampshire Department of Health and Human Services (DHHS), did not act unconstitutionally by reducing DHHS expenditures for fiscal year 2008.
The petitioners, a trade association representing New Hampshire’s private nursing homes, and individual nursing homes providing care to Medicaid recipients, filed a petition for declaratory relief, injunctive relief and a writ of mandamus after the Governor issued Executive Order 2008-10 on Nov. 21, 2008. Executive Order 2008-10 reduced the planned expenditures of numerous state agencies and departments for the fiscal year ending June 30, 2009, thereby eliminating state, county and federal payments that would have been made to the petitioners pursuant to Laws 2007, 129:1 and Laws 2008, 296:18. The parties filed cross-motions for partial summary judgment. The trial court denied the petitioners’ motion ruling that the Governor and DHHS did not act unconstitutionally by reducing the planned expenditures of DHHS for fiscal year 2008.

The Court disagreed with the petitioners’ argument that RSA 9:16-b is facially unconstitutional and unconstitutional as applied. The petitioners argued that the statute is facially unconstitutional because it grants the Governor a “line item veto” in violation of the Separation of Powers and Presentment Clauses of the State Constitution. The Court disagreed stating that RSA 9:16-b does not involve the unconstitutional delegation of legislative power, but rather the permissible exercise of executive authority. The Court further stated that the statute concerns the executive’s power to execute the legislative policy of maintaining a balanced budget and the executive’s authority to spend state revenue. Therefore, the Court disagreed and found that RSA 9:16-b does not involve the delegation of supreme legislative authority, but rather the exercise of the executive branch’s constitutional authority to carry out legislative mandates. The Court found that the statute did not violate the Presentment Clause of the State Constitution because a reduction of expenditures does not constitute a veto.

The petitioners argued that the statute is unconstitutional as applied because it allowed the Governor to contravene the legislature’s express mandate in Laws 2007, 129:1 and Laws 2008, 296:18. The petitioners also argued that the law is unconstitutional as applied because it allowed the Governor to abrogate past due obligations from prior years. The Court found that applying RSA 9:16-b to the Laws 2007, 129:1 and Laws 2008, 296:18 was not unconstitutional but was consistent with the legislature’s intent as expressed in the law’s plain language. The Governor resolved the conflicting mandates by giving priority to balancing the budget, which the Court found consistent with the statute’s plain language.

The Court also disagreed that Executive Order 2008-10 was an unconstitutional taking. The Court held that the petitioners did not have a vested property right that would be entitled to constitutional protection under the Takings Clause. The Court found that the anticipated payment of supplemental rates was conditioned upon there being a balance remaining at the end of June 30, 2007 under Laws 2007, 129:1 and upon the funds being expensed by June 30, 2009 under Laws 2008, 296:18. Similarly, the Court held that the petitioners were not entitled procedural due process without a constitutionally protected property interest. The Court also found that the Executive Order 2008-10 did not violate the Supremacy Clause of the Federal Constitution because it did not establish or modify published reimbursement rates such that it would conflict with certain provisions of the Federal Medicaid Act. The Court declined the petitioners’ request to issue a writ of mandamus compelling payment of the supplemental rates because the Court decided that the petitioners had no right to the relief sought.

Daniel E. Will, Devine, Millimet & Branch, Manchester, for the petitioners. Michael Delaney, attorney general (Laura E.B. Lombardi, assistant attorney general on the brief and Karen A. Schlitzer, assistant attorney general on the brief and orally) for the respondents.


Criminal Law

State of New Hampshire v. Edgar Gordon, No. 2009-570
Jan. 26, 2011
Reversed and Remanded

  • Whether the trial court erred in denying the defendant’s motion to dismiss for insufficient evidence and his motion in limine to exclude evidence of his financial status at the time of the attempted burglary.
The defendant was convicted of attempted burglary. Before trial, the trial court denied the defendant’s motion in limine to exclude evidence of his financial status, including evidence that he was homeless, living in his car and unemployed. At the close of the State’s case, the trial court denied the defendant’s motion to dismiss the attempted burglary charge for insufficient evidence.

Examining New Hampshire Rule of Evidence 403, the Court agreed that it was error to admit the evidence that the defendant was poor and lived in his car. The Court discussed that the probative value of this evidence was minimal quoting from a Ninth Circuit Court of Appeals decision, United States v. Mitchell, 172 F.3d 1004 (9th cir. 1999), which explained that evidence of either a poor person’s poverty or a rich person’s greed, without more, trended toward “unfair prejudice with little probative value.” Id. at 1108-1009.

After concluding that the admission of the evidence was error, the Court next analyzed whether the error was harmless beyond a reasonable doubt. The Court held that the erroneous admission of the evidence of the defendant’s poverty was not harmless beyond a reasonable doubt. The Court held that in light of the fact that “the alternative evidence of the defendant’s guilt was not so overwhelming that evidence that he was poor and living in his car was merely cumulative or inconsequential.”

The Court addressed the defendant’s motion to dismiss on the ground that the evidence was insufficient to convict him. Viewing the evidence in the light most favorable to the State, the Court found that a rational trier of fact could have found that the State met its burden by finding that the defendant took a substantial step towards committing the crime of burglary when, without the victim’s permission, he pulled on the door of her screened-in porch and that he acted with specific intent of committing a crime inside the victim’s home. Thus, the Court found that the evidence was sufficient for the jury to convict the defendant of attempted burglary.

Michael Delaney, attorney general (Stephen D. Fuller, senior assistant attorney general), for the State. Pamela E. Phelan, assistant appellate defender, Concord, for the defendant.


State v. Daniel J. Letendre, No. 2009-770
Jan. 13, 2011
Affirmed

  • Whether the trial court erred in admitting the victim’s statements made concerning the defendant and in permitting the victim’s guardian ad litem to sit with her during her testimony.
The defendant was convicted of two counts of aggravated felonious sexual assault and two counts of simple assault based on allegations regarding encounters between the defendant and the ten-year-old victim. Following one of these encounters, the victim was taken by ambulance where she made statements implicating the defendant to a sexual assault nurse examiner. Before trial, the defendant filed a motion in limine to exclude as hearsay the victim’s statements to the nurse. The defendant alleged that the victim’s statements were not made for the purpose of medical diagnosis and treatment as required by NH Rule of Evidence 803(4). The trial court denied the motion and after a hearing, overruled the defendant’s renewed objection at trial.

In interpreting NH Rule of Evidence 803(4), a court must find first, “that the declarant intended to make the statements to obtain a medical diagnosis or treatment,” second, that “the statements must describe medical history, or symptoms, pain, sensations or their cause or source to an extent reasonably pertinent to diagnosis or treatment” and third, the court must find the circumstances surrounding the statements support their trustworthiness. State v. Roberts, 130 N.H. 731, 740-743 (1993). The defendant’s argument focused on the first required finding. The Court held that the record contained sufficient evidence to support the trial court’s finding of the declarant’s intent because the trial court found that the declarant knew she was going to the hospital for treatment because she testified that she was fearful of having a shot at the hospital, the temporal relationship between her complaints and her ambulance ride to the hospital and the fact that the nurse explained her role and the reasons for the exam before the declarant made the statements.

The defendant also argued that the trial court erred in permitting the victim’s guardian ad litem to sit beside the victim during her trial testimony. The defendant urged the court to require extensive safeguards before allowing a support person to sit with a witness. More specifically, the defendant requested that the Court adopt the nine guiding factors adopted in State v. T.E., 775 A.2d 686 (N.J. Super. Ct. App. Div.), cert. denied., 784 A.2d 719 (N.J. 2001) for a judge to determine whether to allow a support person to sit with or assist a witness. Although the Court declined to set forth specific factors that a trial court must consider in deciding this issue, the Court held that future trial judges facing this issue should give a cautionary instruction, sua sponte, when a support person sits with a child witness during testimony.

The Court further held that the trial court did not unsustainably exercise its discretion in allowing the guardian ad litem to sit with the child witness while she testified in light of the child’s age, the subject matter of the testimony, the fact that the child requested this arrangement, the judge’s attentiveness to ensuring that the child’s testimony was not influenced by the guardian’s presence and, the judge’s direction to the prosecutor to direct the witness to look at the prosecutor and not the guardian.

Michael Delaney, attorney general (Nicholas Cort, assistant attorney general) for the State. Pamela E. Phelan, assistant appellate defender, Concord, for the defendant.


State of New Hampshire v. Robin Knight, No.2009-449
Jan. 13, 2011
Affirmed

  • Whether the trial court erred in denying the defendant’s motion to suppress testimony from a jailhouse informant and in denying the defendant’s request for a jury instruction on the credibility of informant testimony.
The defendant was convicted on one count of accomplice to first degree murder and one count of conspiracy to commit murder arising out of the June 27, 2005 murder of Jack Reid. While the defendant was incarcerated at the Rockingham County House of Corrections, he had numerous conversations with another inmate, Henry Bellemare (Bellemare). During these conversations, the defendant made incriminating statements to Bellemare regarding the murder. Thereafter, a state police detective met with Bellemare at the jail to confirm that he was willing to cooperate with the prosecution of the defendant and on June 26, 2007, the Detective conducted a full interview of Bellemare at the state police barracks.

The defendant filed a motion to suppress Bellemare’s testimony arguing that Bellemare was an agent of the State when speaking with the defendant and thus the State violated his right to counsel. A hearing was held and the trial court denied the defendant’s motion as untimely. Bellemare was allowed to testify. The defendant argued that he had “good cause” for the late filing of the motion to suppress and that the trial court’s remedy of summarily denying the motion was too extreme a sanction. The defendant also argued that the trial unsustainably exercised its discretion in denying his request for a jury instruction on the credibility of informant testimony. The trial court found that the defendant had ample discovery, including taped interviews between Bellemare and the detective, access to reports about two other interviews with Bellemare, as well as letters from attorneys representing Bellemare and the State, to file a motion to suppress before the deadline set by the trial court’s scheduling order. The trial court also held that the defendant did not show good cause for the delay. The Court found that the trial court properly exercised its discretion in denying the suppression motion.

The defendant requested a particular jury instruction regarding Bellemare’s credibility, which the trial court denied finding that a specific instruction would be an improper comment on the evidence. The trial court gave a general credibility instruction as well as an instruction on testimony of accomplices cooperating with the State. The decision to give a particular instruction concerning the testimony of witnesses and the wording of that instruction are within the sound discretion of the trial court. The choice to give a general instruction rather than the defendant’s requested informant instruction did not constitute an unsustainable exercise of discretion on the part of the trial court.

Michael Delaney, attorney general (Michael S. Lewis, assistant attorney general) for the State. David Rothstein, deputy chief appellate defender, Concord, for the defendant.


State of New Hampshire v. John Moscone, No. 2009-559
Jan. 13, 2011
Reversed and Remanded

  • Whether the trial court erred by 1) instructing the jury on the wrong mental state, 2) failing to dismiss the indictments against him, 3) admitting evidence of his identity obtained after he was unlawfully arrested, 4) finding that the State presented sufficient evidence of identity for the case to go to the jury and 5) admitting the transcript of the internet chat room conversations in violation of RSA 570-A:2.
The defendant was charged with two counts of violating RSA 649-B:4, I(a) by “knowingly utilizing a computer on-line Internet service known as Yahoo to attempt to seduce, solicit, lure or entice persons with screen names ‘jordanh_94’ and ‘amber14nh,’ whom John Moscone believed to be ‘under the age of 16, to engage in sexual penetration.’” The defendant was ultimately convicted of two class B felony counts of using computer services in a manner prohibited by law. Through instant messaging in an Internet chat room, the defendant corresponded with a Hudson police department detective posing as two separate fourteen-year old-girls, “jordanh_94” and “amber14nh.”

The defendant argued that the trial court was required to give an attempted jury instruction that included the mental state of “purposely” and the affirmative defense of renunciation because he was charged under 649-B;4, I(a), an element of which includes an “attempt” to seduce, solicit, lure, or entice a child or another person believed by the person to be a child. The Court held that the word “attempt” in the statute does not incorporate the attempt statute or the mental state of “purposely.” The Court further held that the mental state of “knowingly” applied to all of the material elements of the statute because the word attempt is not a contrary purpose plainly appearing in the statute.

The Court declined to address the defendant’s argument that RSA 649-B:4 is unconstitutionally vague and overbroad because he failed to meet his burden of showing that the issue was raised before the trial court. The Court also declined to address the defendant’s argument that the trial court erred in failing to dismiss the indictments against him due to their failure to allege a purposeful mental state relative to attempt because it was not properly preserved.

The defendant further argued that the trial court erred in admitting the detective’s identification of the defendant through his driver’s license obtained after an arrest found unlawful by the trial court. The Court agreed with the majority of jurisdictions that interpreted INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) to suggest that identity language in that case dealt solely with jurisdictional issues as opposed to the suppression of evidence. The Court held that the defendant’s driver’s license obtained after he was illegally arrested and any testimony about the driver’s license should have been suppressed as the fruit of his unlawful arrest. The State did not argue that this was a harmless error and the Court reversed and remanded. However, the Court noted that an officer may identify the defendant in court if he/she is able to do so based upon their observations before the illegal arrest.

The Court rejected the defendant’s argument that there was insufficient evidence of his identity because in reviewing the sufficiency of the evidence, the Court considers all evidence, even evidence erroneously admitted. The Court also rejected the defendant’s argument that publishing the transcript of the instant messaging violated RSA 570-A:2, the statute prohibiting wiretapping and eavesdropping. The Court held that the defendant consented to the recording of the conversation because by using internet instant messaging technology, he knew that the messages could be recorded and the fact that he told “jordanh_94” to delete her archives did not revoke his consent.

Michael Delaney, attorney general (Nicholas Cort, assistant attorney general for the State. Harry N. Starbranch, Jr., Jeffco & Starbranch, Portsmouth, for the defendant.


State of New Hampshire v. Jennifer Long, No. 2009-703
Jan. 13, 2011
Affirmed

  • Whether the trial court erred in allowing the State to impeach the defendant’s credibility with her prior conviction for attempted fraudulent use of a credit card.
The defendant was convicted for resisting arrest. Prior to trial, the State filed a motion in limine to use the defendant’s prior convictions for receiving stolen property and attempted fraudulent use of a credit card to impeach her if she testified. The motion was granted without objection. Before trial, the Court decided State v. Holmes, 159 N.H. 173 (2009) holding that receiving stolen property is not a crime involving an act of dishonesty or false statement for purposes of New Hampshire Rule of Evidence 609(a)(2). In light of the decision, the defendant asked that the Court reconsider its prior in limine ruling on both of the prior convictions. The trial court granted the motion regarding the receiving stolen property conviction but denied the request on the attempted fraudulent use of a credit card conviction. The defendant argued that the statutory elements of an attempt crime do not require proof of an act of dishonesty of false statement.

At trial, the defendant testified and was impeached with her prior conviction for attempted fraudulent use of a credit card. The defendant argued that the trial court erred when it examined the facts underlying the conviction rather than the statutory elements of the crime. She also argued that attempted fraudulent use of a credit card does not require proof of a dishonest act and that the conviction should have been inadmissible under Rule 609(a)(2). The Court noted that the 2007 amendment to New Hampshire Rule of Evidence 609(a)(2) mirrored the 2006 amendment to Federal Rule of Evidence 609(a).

The Court found that it is clear from the advisory committee’s note on the 2006 amendment to Federal Rule of Evidence 609 that the rule anticipated the use of charging documents and jury instructions in establishing the deceitful nature of a criminal conviction. The court also held that because the act involves the false claim to be someone else, conviction under this statute clearly falls within Rule 609(a)(2). Therefore, “a conviction under an attempt variant of a crime requiring proof of an act of dishonesty or false statement may properly be admitted for impeachment purposes under Rule 609(a)(2).”

Michael Delaney, attorney general, (Thomas E. Bocian, assistant attorney general) for the State. Pamela E. Phelan, assistant appellate defender, Concord, for the defendant.


Environmental Law

State of New Hampshire v. Hess Corporation & a., No. 2010-082
Jan. 28, 2011
One transferred question answered

  • The Merrimack County Superior Court transferred two questions pursuant to Supreme Court Rule 9 relating to the State’s ability to recover damages related to methyl tertiary butyl ether (MTBE) contamination in a privately-owned well.
In 1991, New Hampshire opted to participate in and apply for the US Environmental Protection Agency’s reformulated gasoline (RFG) program, which set certain gasoline standards for certain metropolitan areas and was intended to reduce air pollution from vehicles. In 1995, the EPA accepted NH’s application for Hillsborough, Merrimack, Rockingham and Strafford Counties. In 2001, the State petitioned the EPA to opt out of the RFG program on an expedited basis due to allegations that gasoline sold statewide contained the additive MTBE, which according to the State was likely carcinogenic and contaminating the groundwater. Effective Jan. 1, 2007, NH banned MTBE as a gasoline additive.

In 2003, NH and other states filed state court actions against the so-called “MTBE defendants” (gasoline suppliers, refiners and chemical manufacturers) seeking damages for alleged groundwater contamination caused by MTBE. The New Hampshire case was removed to federal court and then, transferred and consolidated with other domestic MTBE cases to the Southern District of New York. The instant case was remanded to Merrimack Superior Court in 2007 for trial by a decision from the US Court of Appeals for the Second Circuit, which reversed and vacated the district court’s order denying the State’s motion to remand.

Prior to this decision, this Court affirmed the dismissal of actions brought by the cities of Dover and Portsmouth against the MTBE defendants. In State v. City of Dover, 153 N.H. 181 (2006), the Court held that the State, rather than the individual cities, was the proper entity to file suit against the MTBE defendants because of its parens patriae standing due to its interest in protecting the residents with respect to the statewide water supply. In City of Dover, the Court also noted that MTBE contamination had affected a substantial portion of the State’s population.

In August 2009, the MTBE defendants filed a motion for partial summary judgment. The defendant’s motion sought to prevent the State from recovering, inter alia, damages incurred by private individuals or water supplies. The State clarified for the superior court that it sought: 1) present and future public water system costs and present and future private well and non-public water system costs for damages claims for MTBE contamination at any level and 2) past public and private well costs and site remediation costs for damages claims for MTBE contamination at or above the ambient groundwater quality standards and maximum contaminant levels (AGQS/MCL) adopted by the NH Department of Environmental Services.

The superior court held a hearing on the defendants’ summary judgment motion and proposed an interlocutory transfer. Pursuant to Supreme Court Rule 9, the superior court transferred two questions:

1. If the State is the trustee of the waters of NH, do all costs of investigating, monitoring, treating, remediating, replacing or otherwise restoring state water contaminated by MTBE, regardless of whether the MTBE is detected in a privately or publicly owned well, constitute damages the State is entitled to recover on its own behalf?

2. Did City of Dover hold that recovery of private damages to the State is permissible, or specifically authorized, in a parens patriae action?

The Court held that the State is not precluded from recovering damages related to MTBE contamination in a privately owned well and remanded the case to the superior court to determine the exact scope of damages available to the State. Additionally, the Court held that that it was unnecessary to reach the second question based on its answer to the first. The Court agreed with the defendants that not all potential damages related to MTBE contamination in New Hampshire waters can properly be recovered by the State in its capacity as parens patriae. However, the Court held that the fact that MTBE is detected in a privately owned well does not necessarily preclude the State from pursuing damages for the costs of investigating, monitoring, treating, remediating, replacing or otherwise restoring such wells.

The Court directed that on remand, and in ruling on the MTBE defendants’ motion for summary judgment, the trial court should determine whether the uncontested facts establish that the defendants have met their burden of proving that the State has not alleged injury, either direct or indirect, to a sufficiently substantial segment of privately owned wells and in doing so, the trial court should consider both private well contamination throughout the entire state and specifically in the four most-affected counties. The Court also directed the trial court to determine whether the defendants can meet their burden to prove that the State’s allegations of injury to private wells are speculative in nature. That is, the uncontested facts must show that MTBE contamination is likely in the private water supply in a given area or region. This requirement was intended to prevent the State from being given carte blanche to investigate and test for alleged MTBE contamination in any area of New Hampshire absent evidence of an actual risk of contamination.

The trial court was also directed to give especially close scrutiny to the State’s request for “present and future private well and non-public water system costs” at any level. Additionally, the trial court was directed to consider the evidence on the summary judgment record to determine whether the defendants can meet their burden of proving that the State’s request for all costs at any MCL/AGQS level is too speculative and oversteps its authority as parens patriae. After consideration of the above factors, the Court directed that the trial court must then determine whether “there may be a community-wide risk present by the alleged contamination that goes beyond harm to the individual well owners.” Finally, the Court concluded that any monetary damages claimed by individual citizens could be excluded from the State’s recovery.

Michael Delaney, attorney general (Mary Maloney, assistant attorney general, on the brief), Victor Sher, Sher Leff, San Francisco, CA (on the brief), Matthew F. Pawa and Benajmin A. Krass (on the brief), Law Offices of Mathew F. Pawa, Newton Centre, MA. for the plaintiff. John S. Guttman, Nessa E. Horewitch (on the brief), Beveridge & Diamond, Washington, D.C., and Peter Beeson, Devine, Millimet & Branch, Concord (on the brief) for the defendants.



Sarah E. Lavoie
A 2004 graduate of Villanova School of Law, Sarah Lavoie is an associate attorney at Burns, Bryant, Cox, Rockefeller & Durkin in Dover and is admitted to practice in New Hampshire and Massachusetts.

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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