Bar News - February 17, 2012
NH Supreme Court At-a-Glance - January 2012
By: Compiled by Scott C. Owens
State of New Hampshire v. Daniel Bent
January 27, 2012
Vacated and Remanded
Defendant was convicted, by a jury, of one count of second degree assault and three counts of reckless conduct. The Superior Court sentenced defendant to three to six years in state prison and ordered him to "make restitution of an amount to be determined plus statutory 17% administrative fee through the Department of Corrections." DOC set restitution at $18,146.03 plus the 17% administrative fee, for a total of $21,230.86, "subject to increase as the victim submits claims for further expenses related to the incident."
- Whether a trial court is bound by the restitution amount set by the department of corrections or whether it must independently consider and set the amount of restitution to be paid by an individual convicted and ordered to make restitution.
The victim subsequently brought a civil suit against the defendant, the defendant’s employer and the employer’s insurance carrier. A settlement agreement between the parties was approved by the Superior Court. Following the settlement, the defendant sought clarification of the settlement’s impact on the order for restitution. The Superior Court reaffirmed the order for restitution at $21,230.86.
Defendant appealed, arguing that the trial court merely adopted the DOC amount for restitution without correlating it to the amount of the victim’s economic loss attributable to the incident. Defendant also argued that, in light of the settlement, the restitution may constitute double recovery to the victim.
In reviewing the record from trial, the Court noted that the evidence presented would have adequately supported the amount of restitution awarded (especially given that the victim and the State presented evidence of more than $127,000.00 in costs) if the lower court had made a determination on that evidence.
Instead, the trial judge mistakenly thought that the court was required to adopt the restitution amount set by the DOC. While the DOC has authority to set the time and method of restitution payments, and to enforce a restitution order, RSA 651:64 (2007), only the court has the authority to set the amount of restitution, RSA 651:63 (Supp. 2010).
Accordingly, the order for restitution of $21,230.86 was vacated and the matter was remanded to the trial court for a determination of the appropriate amount of restitution required, including a determination of whether the restitution ordered and the civil settlement might result in an improper double recovery for the victim.
State of New Hampshire v. Patricia Smith
January 13, 2012
Acting on a tip that defendant was growing marijuana insider her house, a sheriff’s detective began an investigation, obtaining, among other things, electric bills showing high usage year round. He also drove past the premises and observed two air vents, one like a dryer vent and the other a powered exhaust vent. He enlisted the assistance of a state police detective to investigate the matter further.
- Whether evidence obtained from a search of defendant’s property should be suppressed because the warrant was obtained on information gathered by detectives from outside defendant’s dwelling, but within the boundaries of defendant’s property.
On several occasions, the two detectives entered the woods behind defendant’s house to conduct surveillance, making a correlation over time between the operation of the power exhaust vent and a suddenly strong smell of marijuana. The wooded area from which the detectives observed the property was within the boundaries of defendant’s property, but was un-maintained and beyond a stone wall designating the edge of the maintained yard area.
In reliance on the information gathered in their investigation, including their observations from the wooded area behind defendant’s house, the detectives obtained and executed a search warrant. With the evidence obtained from the search defendant was charged with one felony count of manufacturing marijuana. At trial she moved to suppress evidence obtained by officers during a search of her property, but the superior court denied her motion, finding that the officers did not intrude into defendant’s curtilage.
Acknowledging that the State Constitution protects all people—and their homes—from unreasonable searches and seizures, the Court emphasized that such protection is subject to a defendant’s exhibition of a subjective and reasonable expectation of privacy. State v. Goss, 150 N.H. 46, 48 (2003). Further, the Court noted that certain property surrounding the home—the curtilage—deserves the same protection against unreasonable searches as the home itself. State v. Pinkham, 141 N.H. 188, 190 (1986).
In considering whether a defendant’s expectation of privacy is reasonably extended to areas surrounding the home, the Court identified a number of factors: proximity to the home; presence of enclosures around the area; nature of use and steps taken to protect the area from observation of passersby. No single factor is dispositive; the critical question is whether a particular area claimed to be within the cartilage is "necessary and convenient and habitually used for family purposes and carrying on domestic employment." State v. Johnson, 159 N.H. 109, 112 (2009).
Applying the factors to defendant’s appeal, the Court found that while the area was within close proximity to defendant’s house, the area was unused and was not protected by fencing, hedges or other enclosures, nor did defendant take any efforts to prevent outsiders from accesses the area. The Court held that, because the defendant had no reasonable expectation of privacy, the trial court properly allowed the evidence obtained from the search.
State of New Hampshire v. Jack T. Ward
January 13, 2012
A pastor notified police that one of his parishioners had reported seeing child pornography in defendant’s garage while borrowing a drill. The pornography consisted of pictures of female juveniles performing sex acts on adult men. The pictures appeared to the parishioner to have been printed from a computer.
- Whether evidence obtained from a search of defendant’s home and computer should be suppressed were the probable cause on which the warrant was obtained was limited to reports of evidence observed in defendant’s garage.
Police interviewed the parishioner, who again described the photos in the garage. The parishioner related that there was no computer equipment in the garage, but that defendant and his wife both had laptop computers. He also stated that defendant spends a lot of time in the garage, but defendant’s wife does not.
On parishioner’s statements, police sought and obtained a warrant to search defendant’s garage, shed, home and motor vehicle, and to seize any computer or camera equipment. At trial defendant sought to suppress evidence obtained in the searches. The trial court suppressed evidence obtained from a search of defendant’s motor vehicle and person, finding that there was no probable cause for those searches, but denied the motion to suppress evidence obtained in the search of the home and garage.
Defendant appealed, arguing that the warrant affidavit failed to establish probable cause that the computers used in defendant’s home were in any way linked to the images found in the garage and that the parishioner had provided nothing to suggests that pornographic material would have been stored on those computers.
The Court noted that probable cause requires only a showing of substantial likelihood that the evidence sought will be found in the place searched. State v. Orde, 161 N.H. 260, 269 (2010). The affidavit need not "establish with certainty, or even beyond a reasonable doubt, that the search will lead to the desired result." State v. Fish, 142 N.H. 524, 528 (1997).
The Court held that the warrant affidavit provided a sufficient nexus between the garage and the home because the images appeared to have been printed from a computer and the only computer equipment observed by the parishioner was in the home. This information, viewed in a common sense manner, was enough for the magistrate to reasonably conclude that the home would produce evidence of the alleged crime.
State of New Hampshire v. Jason Wilmot
January 13, 2012
The victim was between two and three months old when his ribs and skull were fractured and he was shaken, causing his brain to bleed. When these injuries were suffered, the defendant was living with the baby and the baby’s mother. As part of the police investigation of these injuries, the police taped two interviews with the defendant, arresting him for first degree assault following the conclusion of the second interview.
- Whether defendant’s statements to police should be excluded as involuntary where he was inexperienced with police, he was tired and hungry during the interview, the police employed tactics minimizing the victim’s injuries and the consequences of defendant’s actions and threatened him with arrest.
- Whether the evidence presented was sufficient to exclude the possibility that the victim’s mother or some other caregiver caused the victim’s injuries and find his conduct reckless.
Although at trial defendant never objected to the introduction of his statements as involuntary, the judge nevertheless instructed the jury to disregard his statements if they were found not to have been voluntary. Defendant appealed the jury’s conviction and the Court reviewed the voluntariness of defendant’s statements to police. "In determining whether a [statement] is voluntary, we look at whether the actions of an individual are the product of an essentially free and unconstrained choice or are the product of a will overborne by police tactics." State v. Rezk, 150 N.H. 483, 487 (2004).
Looking at the evidence in light of all the surrounding circumstances, the Court found the defendant’s statements to be voluntary because he was not under arrest when interviewed and thus not entitled to Miranda warnings. Nevertheless he specifically stated that he was acting freely and voluntarily. He was advised that he could end the interview any time. In contradiction to his claim of coercion in the first interview, he voluntarily drove himself to the second interview. The videotaped interviews contained no evidence of threats, violence or coercion. Moreover, "[a]lthough the detectives admittedly used minimization techniques and were ‘friendly’ to the defendant, the police are not prohibited from misleading a suspect, and friendly police conduct does not alter the voluntariness of a defendant’s statements." State v. Hernandez, 162 N.H. _____, _____ (decided November 22, 2011).
With regard to defendant’ argument that the evidence against him was insufficient in that it did not exclude the possibility of the injuries having been caused by the victim’s mother or other caregiver, there was no evidence presented that any of the victim’s other caregivers mistreated him. In fact, the record indicated that the other caregivers testified to the contrary. A rational juror could have concluded that the defendant, who was with the victim at the time the injuries were discovered, and not another caregiver, was the cause of the injuries.
Additionally, a rational juror could have found that the defendant acted recklessly in that acknowledged that he knew "kids[‘] . . . bones are brittle" and that he "felt horrible" about how he handled the baby.
Appeal of A&J Beverage Distribution, Inc.
January 27, 2012
A former employee filed a whistleblower’s complaint with the New Hampshire Department of Labor alleging that he was terminated by A&J Beverage in retaliation for complaints he made to DOL about A&J’s improper administration of the company’s group health plan in violation of ERISA regulations.
- Whether a whistleblower claim for retaliatory termination of an employee for seeking enforcement of a violation of ERISA is preempted such that the Department of Labor lacked jurisdiction to enter penalties against the employer.
A&J did not challenge the jurisdiction of the DOL over the claims and, following a hearing, DOL found that A&J had violated ERISA regulations and awarded the former employee back pay, front pay, attorney’s fees costs and statutory interest. A&J filed a motion for reconsideration, arguing for the first time that the employee’s ERISA claims were preempted. DOL denied the request for reconsideration.
Finding that the former employee’s whistleblower claim fell squarely within ERISA’s retaliation provision found at 29 U.S.C. § 1140, the Court noted that actions to redress such claims would be brought pursuant to 29 U.S.C. § 1132(e)(1), which provides that federal district courts have exclusive jurisdiction over such claims. The Court rejected the former employee’s argument that the claim was "to enforce his rights under the terms of the plan," which would have fallen under another subsection providing for concurrent federal and state jurisdiction.
The Court further held that preemption under ERISA deprived DOL of jurisdiction over the former employee’s claims and, even though A&J raised the issue of preemption for the first time on reconsideration, jurisdictional claims can be raised at any time, even on appeal.
Appeal of Michael Silverstein
January 13, 2012
Employee, whose hours and salary were reduced, filed a complaint under the three-step grievance process set forth in the collective bargaining agreement (CBA) governing his employment. The first step provided for a hearing before the school principal; the second step provided for a hearing before the superintendent; and the third step provided for a "final and binding" hearing before the school board.
- Whether the Public Employee Labor Relations Board properly denied jurisdiction over a dispute under a collective bargaining agreement with a three-step grievance policy that is final and binding.
While the second step of the process was underway, the employee filed a complaint with the Public Employee Labor Relations Board (PELRB). PELRB concluded that it lacked jurisdiction over the CBA. The employee appealed.
The Court agreed that PELRB lacked jurisdiction because: (1) the three-step grievance process was final and binding and was the product of the negotiated agreement of the parties to the CBA; (2) the negotiated CBA’s three-step grievance process constitutes a waiver of the employee’s right to due process in the form of a de novo review by the PELRB; and (3) the mere fact that the final determination under the CBA rests with the public employer does not render the agreement unworkable under RSA 273-A:4.
In the Matter of Marty A. Henry and Thomas A. Henry
January 13, 2012
Marty A. Henry and Thomas A. Henry were married for approximately 36 years. They never conceived any children together, but Thomas adopted Marty’s son from a prior relationship. Marty filed for a fault-based divorce after learning that Thomas had sexually abused her son 30 years ago. The family division granted the fault-based divorce.
- Whether the family division’s finding of fault based divorce was proper given that the conduct occurred 30 years ago and was directed at someone other than the petitioning spouse.
The Court affirmed the family division’s award of a fault-based divorce, holding that the evidence supported a finding that Thomas’ actions "seriously injured health or endangered reason" with regard to Marty. Marty testified that she suffered from the shakes, rapid weight loss, anxiety attacks and other symptoms after her son told her—and Thomas confirmed—that he had been sexually abused.
The Court noted that "[a]ny behavior" that "affects the other physically or mentally is treatment within the meaning of the statute." In the Matter of Guy & Guy, 158 N.H. 411, 413 (2009). The behavior needn’t be recent nor directed at the other spouse.
The Court also affirmed the family division’s distribution of assets and award of alimony, deferring to the trial court’s judgment as the relevant factors were properly addressed on the record.
In the Matter of Tami Mallett and Michael Mallett
January 13, 2012
Reversed and Remanded
Tami Mallett and Michael Mallett were in a long term relationship but never married. Over their fourteen years together, they had two children and held themselves out as being married. They wore wedding rings, shared a last name, owned property together and worked jointly in business enterprises.
- Whether the family division can find a marriage of estoppels and grant a divorce based on that finding.
- Whether in a dispute between unmarried parties who have children together, the family division has jurisdiction to partition jointly owned real estate, order health insurance coverage or adjudicate claims to assets.
Tami filed a petition for divorce. Michael moved to dismiss on the grounds the he and Tami were never married. The trial court granted Michael’s request for interlocutory transfer to consider a number of underlying factors relating to the court’s ability to hear the case.
The Court determined that New Hampshire only recognizes common law marriage in narrow circumstances following the death of one of the partners. The Court also determined that marriage by estoppels did not apply to this case because that theory requires one of the parties to be ignorant of the falsity of the marriage and both parties here were aware that no marriage existed. As such, the Court found that no marriage existed and thus the family division could not grant a divorce.
Finding that no marriage existed between the parties the Court pointed out the family division’s limited jurisdiction, holding that it had no authority to divide the assets or assess the compensation claims of unmarried parties. Furthermore, the family division could not rely on its equity powers to address these claims, because those equity powers were limited to matters properly within the court’s jurisdiction.
The Court abandoned the family division’s award of attorneys’ fees to Tami and remand the matter back to the family division for dismissal of the action.
In Re Anthony F
January 13, 2012
Reversed and Remanded
A parking lot monitor at the juvenile’s school reported that juvenile appeared to be leaving campus. The juvenile was intercepted by the monitor and two assistant principals as he was half way across the athletic field, about 200 yards from the school building. Although the juvenile stated he did not feel well and wanted to go home, he was persuaded to return to the school office.
- Whether the trial court properly allowed evidence obtained following a search of a juvenile where the juvenile turned out his own pockets following questioning by the principal after the principal prevented him from leaving campus.
The assistant principals told the juvenile twice that he was going to be searched, then asked him if he had anything he that he shouldn’t have at school. The juvenile voluntarily surrendered a small bag of marijuana from his sock.
The juvenile sought to suppress the evidence as the result of an unreasonable search. The State argued that no search occurred because he voluntarily surrendered the marijuana and, even if a search occurred, it was reasonable.
The Court held that a search occurred in spite of the voluntary surrender by the juvenile, finding "no meaningful distinction between twice telling the juvenile that he was going to be searched and then asking if he had ‘anything on [him] that [he] shouldn’t have’ and ‘command[ing] him to reveal’ what he had."
Next the Court found that the search was unreasonable because it was not justified at its inception. Although the principals testified about the problem of students bringing contraband onto campus, the juvenile here was leaving campus and only returned at the direction of the administrators. Additionally, there was no evidence of any prior history of the juvenile’s involvement with such contraband.
In Re Haley K
January 27, 2012
A child, born in August 2007, was living with her father and paternal grandmother in May 2009 when the father was arrested and incarcerated. Following the father’s incarceration, the grandmother declared that she was unable to care for the child and surrendered her to foster care.
- Whether the "reasonable efforts" required to be provided by the State under RSA 169-C:24-a before petitioning for termination of parental rights must be tailored to the circumstances of an incarcerated parent.
In June 2009, the New Hampshire Division for Children, youth and Families (DCYF) filed a petition alleging that the child was a neglected child as defined by RSA 169-C:3, XIX (b) and (c)(2002). The child’s mother and father stipulated that the child was neglected.
In July 2010, DCYF filed a petition under RSA 170-C:5, III to terminate the parents’ parental rights as a result of their failure "to correct conditions of neglect and abuse." The mother voluntarily surrendered her parental rights. Following a two-day hearing with regard to the father’s rights, the trial court found that the father failed to provide proper parental care or control necessary for the child’s health because, upon his incarceration, he left the child with his mother who was unwilling and/or unable to care for the child and that the child was likely to suffer serious harm.
The father appealed, arguing that DCYF failed to provide reasonable services for his reunification with the child pursuant to RSA 169-C:24-a, III(c). Specifically, the father claims that DCYF had an obligation to provide services he could access while incarcerated. Acknowledging that the State’s ability to provide services is constrained by its staff and financial limitations, In Re Juvenile 2006-833, 156 N.H. 482, 486 (2007), the court emphasized that "reasonability" is the standard under which DCYF’s efforts are to be assessed.
The DCYF provided a parent aide, who monitored the father with the child during prison visits, but other efforts—for random drug screening, private counseling and assignment of a child protective services worker—were thwarted or complicated by the father’s incarceration. At the end of the twelve month period following the finding of neglect, the father remained unable to care for the child as a result of his incarceration. While the father argues that DCYF should have done more to provide him reasonable services, he failed to identify what alternatives it should have provided him.
The Court affirmed the termination of parental rights, finding that the father’s ongoing incarceration contributed to the continuation of the child being without proper parental care or control and that the father failed to make adequate provisions for the child’s care and support during his incarceration. The Court likened the father’s incarceration to a military parent’s deployment oversees: the father’s "physical unavailability did not absolve him of his parental obligation to provide for the care of his child."
Jonathan Doyle v. Commissioner, New Hampshire Department of Resources and Economic Development
January 13, 2012
Reversed and Remanded
Doyle decided to film himself dressed as "Bigfoot" on Mount Monadnock, a mountain within Monadnock State Park, which is owned and managed by the Department of Resources and Economic Development (DRED). He purchased a costume and climbed the mountain with his girlfriend, who filmed conversations Doyle had with other hikers.
- Whether Res 7306.01(a) is unconstitutionally void for vagueness, overbroad on its face and not narrowly tailored, and or overly broad as applied.
After what he perceived as a favorable response to his project, he decided to stage another event, this time publishing a press release in the local paper in advance of his next appearance. At that appearance, Doyle and his girlfriend were joined by three other participants, who assisted in filming their ascent of the trail and interviewing passersby.
A park ranger intercepted the group and asked if they had a permit. When Doyle and his friends acknowledged that they did not, the park ranger asked them to leave the mountain.
Res 7306.01(a) requires a person to obtain a special permit to use DRED properties for "holding organized or special events which go beyond routine recreational activities." There is a $100 fee to apply for the permit and 30-day’s notice and proof of a $2 million insurance policy covering the State of New Hampshire are required.
The Court held that Doyle’s "wholly neutral futilities" was unquestionably protected speech and turned to whether DRED’s permitting requirements improperly intruded on that speech. The parties on appeal agreed that the regulation at issue was content-neutral, so the Court looked to determine whether the permit requirement was narrowly tailored to achieve a significant government interest.
Looking at the plain language of the permit requirement, as written, the Court determined that it applied to a broad range of people and types of speech. The regulation was determined to have been applicable to large groups, small groups or even a single individual if the event were considered organized.
The Court noted that requiring a loan protester or speaker to obtain a permit would not have furthered DRED’s interests as it is primarily large groups that implicate security, traffic and maintenance concerns. The regulation’s application to small groups who would not tax limited resources was found to be inconsistent with DRED’s stated interest. The Court also noted some concern about the 30-day notice requirements being unnecessarily long and making no provision for spontaneous speech. The regulation was found to be overly broad.
MacLearn v. Commerce Ins. Co.
January 27, 2012
Mr. and Mrs. MacLearn were married in 2004. Mr. MacLearn owned a 2000 Audi A6, insured by Commerce Insurance Company. Mrs. MacLearn owned a 2006 Prius, insured by GEICO. Mr. MacLearn’s policy with Commerce listed him as the only named insured and the Audi as Mr. MacLearn’s only automobile.
- Whether language in one spouse’s automobile insurance policy was sufficiently clear to exclude coverage for an accident he was involved in while driving the other spouse’s vehicle.
In October 2008, Mr. MacLearn was driving his wife’s Prius when he was involved in a motor vehicle accident that seriously injured a 3rd party. For reasons unexplained in the Court’s decision, demand was made on Commerce, not GEICO, for the 3rd party’s injuries.
The language of Commerce’s policy, as amended by endorsement to conform with RSA 259:61, provided:
B. We do not provide Liability Coverage for the ownership, maintenance or use of:
. . .
2. Any vehicle, other than "your covered auto," which is:
a. Owned by you; or The policy further defined the term "you" and "your" to refer to (1) the named insured and (2) the insured’s spouse if a resident of the same household. Commerce denied the claim, stating that "[n]o coverage exists for the 2006 Toyota Prius based on the policy language referenced above since Commerce Insurance does not provide liability coverage for a vehicle, other that ‘your covered auto’ which is owned by you or your spouse. The trial court granted summary judgment for Commerce, finding that the policy sufficiently excluded coverage.
b. Furnished for your regular use.
In finding the policy language unambiguous and affirming the trial court’s grant of summary judgment, the Court adopted the reasoning of the Ohio Supreme Court in Hacker v. Dickman, 661 N.E.2d 1005 (Ohio 1996) for the interpretation of similar policy language in New Hampshire: "[I]n defining ‘you,’ the policy specifically uses the words ‘Throughout this policy "you" and "your" refer to . . .,’ which allows for the reading of the alternatives that follow as being just that, alternatives. If either alternative is applicable, the exclusion must be applied." Hacker, 661 N.E.2d at 1007.
The Court found the Hacker construction to be consistent with the policy behind such exclusions, which were designed to "prevent the insured from purchasing an insurance contract to cover the risk of operating one vehicle, and obtaining coverage on another vehicle that is regularly used in the household." Sheldon v. Hartford Ins. Co., 189 P.3d 695, 699 (N.M. App. 2008).
The Court did not reach the issue of whether the language in another exclusionary provision of the policy was ambiguous, noting that because coverage was already excluded under one unambiguous provision it made no difference whether another exclusion might be ambiguous.
January 13, 2012
Order of Disbarment
The Professional Conduct Committee (PCC) filed a petition recommending disbarment of an attorney for knowingly making false statements of fact to the bankruptcy court.
- Whether Professional Conduct Committee lacked clear and convincing evidence that attorney made knowing false statements to the bankruptcy court, in violation of Rule 3.3(a)(1), when he entered zeros in the columns on two forms for income of debtor’s spouse, but disclosed contributions from spouse elsewhere in the forms and filings.
A client retained the attorney to file a bankruptcy petition for her soon after she married. She insisted that her husband and his income not be involved in the petition. The attorney knew of the husband and his income, but he reported ‘zero’ for spouse’s income on numerous documents forming the petition. Instead he reported "contributions from spouse" as "other monthly income" of the debtor.
As a result of the attorney’s failure to provide the husband’s income on the petition, the bankruptcy trustee recommended against confirmation of her Chapter 13 plan. The debtor tried to convert to a Chapter 7 plan, but the trustee moved to dismiss as a result of her failure to disclose her husband’s income.
The attorney argued that the PCC failed to prove that he knowingly made false statements to the bankruptcy court by clear and convincing evidence. He pointed to (1) his reference to the spouse’s contributions and (2) the uncertainty of bankruptcy law as to the effect of spousal income as the bases for his argument.
The Court rejected both bases reasoning that the uncertainty of the effect of a spouse’s income is no excuse for misrepresenting the amount of that income on disclosures required by the bankruptcy court’s petition and that reference to the spouse’s contributions remains silent on the issue of income, which was the bankruptcy court’s inquiry.
"The privilege of practicing law does not come without the concomitant responsibility for truth, candor and honesty. Because no single transgression reflects more negatively on the legal profession than a lie, attorney misconduct involving dishonesty justifies disbarment." Young’s Case, 154 N.H. 359, 369 (2006).
|Scott C. Owens
Scott C. Owens is an associate at Harmon Law Offices in Newton, MA, where he represents institutional lenders in a variety of litigation matters in state and federal courts. Attorney Owens has also been an adjunct professor in the Legal Studies Department at Bay Path College since 2005, teaching classes on the American legal system and real estate law to students in the paralegal certification program.