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Bar News - July 16, 2014

Supreme Court At-a-Glance

June 2014
Criminal Law
State of New Hampshire v. Jamie Locke
No. 2013-058
June 13, 2014
  • Did the defendant’s trial for second-degree assault, after she was acquitted on first-degree assault charges resulting from the same course of events, violate her Constitutional guarantees against double jeopardy?
Both assault charges against defendant Jamie Locke arise out of events that took place on one night in November 2009. Locke, in concert with two others, caused injuries to the victim by throwing him over the banks of the Merrimack River and then leaving him there. Locke was indicted on charges of conspiracy to commit murder, two counts of being an accomplice to an attempted murder, attempted murder, and first-degree assault as both a principal and an accomplice. The first jury trial acquitted her of all but one of the accomplice to attempted murder charges. The first accomplice to attempted murder charge had been dropped prior to trial. The jury’s verdict was later set aside on the grounds that “accomplice to attempted murder failed” to allege a crime. The state later moved for a mistrial on the grounds that the jury foreperson announced the wrong verdict. The trial court later denied the state’s motion.

Before the ruling on the state’s mistrial motion was announced, a grand jury returned an indictment against Locke for second-degree assault as both a principal and an accomplice. The record does not reveal why the state failed to seek a second-degree assault indictment initially. Locke’s motions alleging a violation of her constitutional guarantees against double jeopardy were denied. She was convicted and moved to set aside the verdict on the grounds that the second-degree assault charge was the same as the first-degree assault charge for double jeopardy purposes. The trial court denied that motion as well.

On appeal before the NH Supreme Court, Locke argued that, for double jeopardy purposes, the second-degree assault charge on which she w as convicted is the same as the first-degree assault charge on which she was acquitted. Alternatively, the state should have been required to join all charges resulting from the same course of conduct into one trial. Even if the two charges are not the same underlying offense, the absence of good reason to omit the second-degree assault charge from the first trial should preclude the state from bringing it after her acquittal.

The court found in favor of Locke, reasoning that forcing the defendant to go through multiple criminal proceedings at the will of the prosecutor is harmful to both the defendant and the criminal justice system. Multiple trials for alleged offenses resulting from the same course of events causes the defendant embarrassment, harm and expense. And multiple trials give the state the opportunity to rehearse its arguments and enhance the likelihood of conviction.

The court also made observations for the benefit of future litigants and articulated its test for double jeopardy. The test, which is deemed the “same evidence” test, considers two events to be the same event for purposes of double jeopardy unless each event requires proof of an element that the other does not.

However, the court ruled that it has not always applied the double jeopardy test with regularity. In Heald v. Perrin, 123 NH 468 (1983), while the court “focused specifically upon the evidence required to prove each offense, we have not always done so in subsequent cases.”

The court mentioned a string of other past cases where double jeopardy has been an issue and discovered that it cannot identify a consistent approach to its double jeopardy analysis, casting doubt on the idea that its double jeopardy jurisprudence can be reconciled. Future parties are invited to ask the Court to reconsider double jeopardy in accordance with stare decisis and suggest the formulation of a test to be adopted under the New Hampshire Constitution.

Joseph Foster, attorney general (Stacey Coughlin, attorney, on the brief and orally), for the state. Christopher Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

State of New Hampshire v. Stephen Stangle
No. 2012-857
June 20, 2014
  • Whether the trial court erred in admitting the video evidence where no witness testified that it accurately depicted the events at issue
  • Whether the video was properly authenticated
  • Whether the trial court erred in allowing the jury to see the video
Stephen Stangle walked through an unattended store checkout line carrying a vacuum cleaner. He did not pay for the vacuum, but was able to return it at the store’s customer service desk during his same visit to the store. One week later, an asset protection manager (manager) at the store used store surveillance video to trace Stangle’s movements from the time he entered the store until he made the “return” in exchange for a gift card. The manager copied the video onto a CD and turned it over to police. The police matched the state identification number on the identification presented during the exchange to Stangle’s driver’s license. Stangle acknowledged that he “returned it [the vacuum cleaner] for the money and was indicted on one count of theft by deception.

At trial, the state tried to introduce the surveillance video, authenticating it through the manager’s testimony. Stangle objected on the grounds that the state failed to lay a proper foundation for the admission of the video, but the court admitted the video into evidence. The trial court found that the authentication requirement for the video had been satisfied by evidence sufficient “to allow a reasonable juror to find that the video is what the state claims it is.” Stangle was found guilty of theft by deception.

On appeal to the NH Supreme Court, Stangle argued that the trial court erred in admitting the video “where no witness testified that it accurately depicted the events at issue.” The state argued in response that the manager’s testimony sufficiently authenticated the video. The court agreed.

The decision to admit evidence is at the discretion of the trial court. When the Supreme Court determines whether a ruling was a proper exercise of discretion, it considers whether the record establishes an objective basis to sustain the decision made. For Stangle to show an unsustainable exercise of discretion, he needed to demonstrate that the ruling was clearly untenable or unreasonable to the prejudice of his case. Under Rule 901(a), the requirement for authentication as a condition precedent to admissibility has a low standard of proof.

Stangle’s arguments on appeal picked apart the trial court’s ruling on the evidence. He argued the manager’s testimony was inadequate because she was not involved with the maintenance of the camera system or the storage of tapes. He also argued that the state offered evidence that was not sufficient to establish the reliability of the video’s storage and handling. He also asserted that the state was required to call the witness to the “return” transaction.

The court had not previously addressed the foundational requirements for admitting videos under Rule 901(a). It discussed cases from other jurisdictions that grapple with the Silent Witness Theory, which allows a recording to be introduced as primary, substantive evidence of the events that the recording depicts. Under the theory, a human need not testify to the accuracy of the images depicted so long as the accuracy of the process that produced the video images is established with an adequate foundation. The Court declined to adopt a rigid approach, reasoning that the context in which evidence is gathered and used is different for every trial. In the instant case, the court found that the state properly admitted the video under the silent witness theory.

The court ruled that the state was not required to call the employees who were involved in the transaction or present evidence of the defendant’s appearance on the day in question. The court concludes that the trial court’s discretion was sustainable when it ruled that the video was properly authenticated, the video could be played for the jury and the video could be admitted into evidence.

Joseph Foster, attorney general (Stephen Fuller, senior assistant attorney general, on the brief and orally), for the state. Stephanie Hausman, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

Domestic Relations
In the Matter of the State of New Hampshire and Cory R. Lounder
No. 2013-359
June 13, 2014
Reversed and Remanded
  • Does incarceration qualify as a substantial change in circumstances for the purposes of modifying a child support order?
  • Is incarceration equal to voluntary unemployment for the purposes of modifying a child support order?
In November 2009, the trial court approved a uniform child support order that obligated Lounder to pay $109 per week in child support to the mother of his children. Lounder was convicted of arson and sentenced to prison in February 2013. He is ineligible for release before 2016.

Lounder’s incarceration caused him to lose his job and all sources of income. In August 2012, Lounder filed a petition requesting that his support obligation be reduced to $50 per month, the minimum support order, in light of a substantial change in circumstances. Lounder’s petition was denied following a hearing. His petition was denied and he moved for reconsideration. The trial court relied on Noddin v. Noddin, 123 NH 73, 76 (1983) in its denial of Lounder’s motion for reconsideration.

The court first examined the trial court’s ruling regarding Lounder’s incarceration being a substantial change in circumstances. To resolve Lounder’s appeal, the court examined RSA Chapter 458-C (2004 & Supp. 2013), which does not specifically enumerate what constitutes a substantial change in circumstances. Trial courts consider a variety of factors, including the needs of each party and ability to pay, in determining whether a child support order needs to be modified.

The NH Supreme Court ruled that trial courts must consider a parent’s incarceration when determining whether a child support order should be modified. Trial courts may still determine that modification is unwarranted. The trial court’s reliance on Noddin is misplaced. The court stated that the enactment of Chapter 458-C supersedes the court’s decision in Noddin. (Noddin held that a parent terminated from employment because of their own wrongdoing was not entitled to a reduction in child support obligations).

The court ruled that the trial court could not have found evidence of Lounder’s unemployment being voluntary. Lounder was involuntarily terminated following his arrest on charges of arson and subsequently incarcerated. There is no evidence to suggest that Lounder committed the crime to avoid paying child support.

The court held that the trial court should have applied RSA 458-C:3, IV(a) to Lounder’s petition. That portion of RSA 458 states “If the obligor parent’s gross income is less than the self-support reserve and the court has determined that the obligor is not voluntarily unemployed or underemployed, the court shall order the child support obligation in the amount of a minimum support order.” The case was remanded to the trial court for proceedings not inconsistent with the Court’s opinion.

Sederquest Law Office, of Peterborough (Rachel Sederquest on the brief), for the respondent. Joseph A. Foster, attorney general, for the State, filed no brief. The petitioner, self-represented, filed no brief.

Gary Dube & a. v. New Hampshire Department of Health and Human Services & a.
June 18, 2014
  • Whether the trial court correctly denied the plaintiff’s motion for summary judgment motions and granted the defendant’s cross summary judgment motions
  • Whether the New Hampshire Administrative Rules, He-M 426.04(a)(2) violated the Federal Medicaid Act
Harbor Homes (HH) is a nonprofit corporation in Nashua that provides independent living and support services to individuals with serious mental illness, including Medicaid-funded rehabilitative services. In June 2008, HH entered into an inter-agency agreement (IAA) with Greater Nashua Community Mental Health Center (GNMHC) to ensure collaborative service planning and delivery, continuity of care between HH and GNMHC, a minimum of resource duplication between the two agencies and the provision of 24-hour emergency services. In February 2011, HH learned that GNMHC did not intend to renew the IAA. HH’s Medicaid-reimbursable services would be transferred to GMNHC. As of July 1, 2011, HH would no longer be permitted to provide Medicaid-funded mental health services to the plaintiffs in this case and to other parties. Rule 426.04(a)(2) required an entity like HH to have an IAA with a community mental health provider.

The plaintiffs filed a petition for injunctive and declaratory relief on June 28, 2011. The petition sought a court order enjoining the NH Department of Health and Human Services (DHHS) from terminating or limiting HH’s status as a qualified Medicaid provider. The petition also sought to direct the state to allow individuals to obtain community mental health services from HH (the provider of their choice).

The court denied the plaintiffs request for an injunction after two hearings. All parties then moved for summary judgment on the plaintiff’s claim that DHHS’s reliance on the IAA requirement as a reason to deny HH Medicaid-provider status was improper, because the IAA requirement is invalid on its face. The trial court denied the plaintiff’s motion and granted the defendant’s motion in part. It ruled that the plaintiff’s challenge failed as a matter of law because “[t]he IAA requirement relates to the administration of the state [Medicaid] plan and qualifications of providers pursuant to the Medicaid act.” Thus, the requirement of an IAA is valid.

The NH Supreme Court reverses the trial court and ruled that Rule 426.04(a)(2) violates the federal Medicaid act.

The Medicaid program, established by 42 USC § 1396 et. Seq is a cooperative federal-state program in which the federal government offers funding to states that provide healthcare services to persons who cannot pay their own costs.

Each state designs and implements its own Medicaid program and retains discretion as to the amount, scope and duration of coverage. But participating states must allow Medicaid-eligible patients to choose their own provider. New Hampshire’s Medicaid program provides that only community mental health programs or their subcontractors are authorized to provide Medicaid-funded community mental health services.

The plaintiffs in this appeal advanced four arguments. The Court only considered one: Whether DHHS reliance on the IAA requirement to disqualify HH violates the Federal Medicaid Act’s free-choice provision.

First, the Court examined a 7th Circuit case from 2012, Planned Parenthood v. Com’r of Dept. Health, which found that states can not establish qualifications for providers that limit the right of a patient to choose the provider. A “qualified” provider under the terms of federal law is able to perform relevant medical services in a competent, safe, and legal manner. States retain the authority to establish licensing standards and other related practice qualifications for Medicaid providers.

The court found the defendant’s reliance on two cases, Warr v. Hosley 705 F. Supp 540 (M.D. Ala. 1989) and District of Columbia Podiatry Society, to be misplaced. In Warr, the court concluded that podiatrists in Alabama were excluded from the free-choice provision of federal law and not entitled to reimbursement from Medicaid for services provided. Alabama did not include podiatry as an optional service in its Medicaid plan. The facts of District of Columbia Podiatry Society are substantially similar. There, the court interpreted the free-choice provision to encompass only those services provided under the state Medicaid plan.

New Hampshire, unlike Alabama or the District of Columbia, includes optional rehabilitative services in its state Medicaid plan. Because New Hampshire has elected to provide the services, it has bound itself to follow the Medicaid act and the appropriate regulations.

Defendants also contended that the requirement of an IAA is necessary to serve the best interests of the clients to whom the service is provided. The sharing required by the IAA ensures that the diagnosis, development of a service plan and the provision of service is based on a full complement of information about the individual. Thus, the IAA requirement has a rational basis and is a reasonable standard related to the quality of care.

The court found that the argument was lacking in that it failed to explain how the IAA related to the provider’s fitness (i.e. professional competency) to render the service required.

The court ruled that the IAA requirement makes the ability of a community mental health provider to render services funded by Medicaid contingent on the existence of an IAA between it and a community mental health program. The standard should be whether or not the community health provider can perform the needed medical service in a professionally competent, safe, legal and ethical manner. HH is excluded from Medicaid for reasons entirely unrelated to its fitness to provided professional healthcare services.

The court concluded that the trial court erred in finding that the IAA requirement does not violate the free-choice provision in the Medicaid act. The Court reverses the trial court’s decision and remands it for further proceedings.

Disabilities Rights Center, of Concord (Adrienne Mallinson, Rebecca Whitley, and Amy Messer on the brief, and Mallinson orally), for plaintiffs Gary Dube, Thomas Taylor, Cynthia Washington, and Arthur Furber. Devine, Millimet & Branch, PA, of Manchester (Thomas Quarles Jr. and Donald Smith on the brief, and Quarles orally), for plaintiff Harbor Homes Inc. Joseph Foster, attorney general (Jeanne Herrick, attorney, on the brief and orally), for the defendants.

Tax Law
Appeal of Coos County Commissioners on Behalf of the Unincorporated Places of Dixville, New Hampshire and Millsfield, New Hampshire
No. 2013-504
June 18, 2014
Affirmed in Part, Reversed in Part, Remanded
  • Whether the Board of Tax and Land Appeals (BTLA) properly denied the Coos County Commissioners’ (CCC) motion to reconsider and revise downward the valuations of the unincorporated places named Millfield and Dixville.
In 2007, CCC was considering whether to allow Granite Reliable Power LLC (Granite Reliable) to develop a renewable energy windpark (windpark) in Millfeld, Dixville and the Town of Dummer. A relevant consideration of the project was whether the CCC would enter into a payment in lieu of taxes (PILOT) agreement with Granite Reliable.

The PILOT agreement would allow Granite Reliable to make regular payments instead of property taxes. The CCC met, in a non-public meeting, with members of the NH Department of Revenue Administration (DRA). The purpose of the meeting was to have an “educational session” on utility assessment, so that the CCC could evaluate the proposed PILOT agreement.

During the meeting, the Coos County administrator estimated the value of the windpark at $150 million and asked the DRA appraiser if that figure was reasonable. The appraiser estimated the value at $113 million. Another DRA representative cautioned that the equalized value of the places where the windpark was located would increase substantially.

In 2008, CCC and Granite Reliable entered into a PILOT agreement using the $113 million valuation.

In their 2012 annual property value reports, Millfield and Dixville estimated the value of the windpark at $0 because neither place had done an appraisal. Also in 2012, the DRA did a utility tax appraisal on the windpark that valued it at significantly more than $113 million. The CCC then asked the DRA not to use the utility tax appraisal to calculate the equalized values for Millfield and Dixville. Since neither place had done a tax appraisal, however, the DRA used the utility tax appraisal to calculate their equalized value.

In May 2013, CCC filed equalization appeals on behalf of Millfield and Dixville with the BTLA. The CCC asked that the equalized value of the unincorporated places be revised downward. In June 2013, the CCC filed a motion with the BTLA to compel the DRA to release its utility appraisal for the windpark.

The CCC also asked to continue the hearing so that it could have time to review the utility appraisal and review new information provided by the DRA. The DRA objected, but the BTLA denied both of its motions.

The BTLA held a hearing on appeals during which CCC attempted to call an expert witness to testify to a “sensitivity analysis” that he had conducted on the windpark. The expert would also compare the $113 million value used in the appraisal and the approximate $235 million figure for the equalized value of Millfield and Dixville. The BTLA agreed with the DRA’s objection to the expert’s testimony on the grounds that CCC had not complied with the BTLA’s disclosure rules. The BTLA denied the equalization appeals. It ruled that the CCC had not met its burden of proof.

CCC raised three arguments on appeal to the Supreme Court: that the DRA’s assessed value was greater than fair market value, that the BTLA erred by denying CCC’s motion to compel production of the DRA’s evaluation, and that the DRA should be estopped from denying the accuracy of the $113 million valuation.

The Court ruled that the BTLA made a reasonable determination when it allowed the DRA to use the utility park appraisal. The Court highlights the fact that neither Millfield nor Dixville had fulfilled their statutory duty. Nor was the DRA required to consider other evidence when it equalized the values for Millfield and Dixville.

Next, the Court addressed CCC’s assertions regarding adjustments to the value of the windpark and found that the DRA was not statutorily obliged to adjust the value. Because the statute is clear on its face, the Court declines to address the CCC’s further arguments based on public policy or legislative intent.

The Court also held that the CCC did not have a fair hearing before the BTLA. The BTLA’s failure to compel production of the windpark appraisal prevented the CCC from having an opportunity to prove the equalized values were disproportionate and unjust. The court declined to express an opinion on whether the CCC was entitled to call witnesses.

The Court refuted the DRA’s contention that the assessment is not relevant to an issue in the proceeding. The Court reasons that the DRA relied solely on the confidential utility tax appraisal when it determined a value for the windpark. The value of the windpark has a significant effect on the valuation of Millfield and Dixville. Therefore, the Court ruled, the claim that the appraisal is not “directly related” must fail.

The Court finds that the BTLA did not err in rejecting the estoppel argument, citing the BTLA’s determination that neither the minutes from the 2007 meeting nor anything that happened thereafter indicated a promise that the windpark’s value would be fixed at $113 million.

Waystack Frizzell, Trial Lawyers, of Colebrook (Jonathan Frizzell and Sandra Cabrera on the brief, and Frizzell orally), for the petitioner. Joseph Foster, attorney general (Laura Lombardi, assistant attorney general, on the brief and orally), for the respondent. Donahue, Tucker & Ciandella, of Meredith (Christopher Boldt and Eric Maher on the brief) for City of Berlin as amicus curiae.

Tort Law
Kathleen Boulter v. Eli and Bessie Cohen Foundation D/B/A Cohen Camps
No. 2012-926
June 20, 2014
  • Did the trial court err in its finding that the plaintiff’s claims were barred by the Firefighter’s Rule?
Plaintiff Kathleen Boulter is a police officer. She was injured by Michael Feld, an employee of Cohen Camps, when she was responding to a call from a resident near the defendant’s summer camp that Feld had broken into the resident’s home. Feld tackled Boulter and tried to strangle her.

Employees of the camp were aware that Feld was suffering from psychological problems and had noticed a change in Feld’s personality from the previous summer.

Boulter brought suit against Cohen Camps (Cohen) in a multi-count writ, alleging Cohen owed her a duty of care. Cohen moved for summary judgment in the trial courts, arguing that Boulter claim’s were barred by the “Firefighter’s Rule” codified in RSA 507:8-h, that Boulter could not establish that Cohen behaved negligently or recklessly as a matter of law, and that Cohen owed no duty to Boulter to protect her from the criminal conduct of third parties. The trial court granted Cohen’s motions.

On appeal to the Supreme Court, Boulter argued that the trial court erred in its finding that her claims were barred by the Firefighter’s Rule. The Firefighter’s Rule, as it was in effect at the time, provided that police officers and other first responders have no cause of action for injuries arising from negligent conduct that precipitated their summons to the scene. There is an exception to the Rule for unrelated conduct that occurs during the responder’s engagement, negligent conduct, or willful, wanton or reckless misconduct.

Boulter argued that her claims fall under the exceptions to the Firefighter’s Rule. Boulter asserted that had Cohen not acted negligently, Feld would not have broken into the home and Boulter would not have been injured while trying to apprehend him. The Court ruled that because the injury was sustained during her official engagement, she is barred from recovery by the Firefighter’s Rule.

The Court next addressed Boulter’s efforts to invoke the exceptions of the Firefighter’s Rule. Boulter asserts that the trial court erred in finding that Cohen’s actions (or lack thereof) were not reckless or intentional.

The Court agreed with the trial court’s finding that “[t]aking the facts in a light most favorable to the plaintiff, from the perspective of the defendant, all [Feld] did was exhibit unusual behavior shortly before the incident in question.” The Court noted that there is no evidence in the record that Feld threatened physical harm or death prior to his encounter with Boulter.

The Court held, as a matter of law, that Cohen’s conduct could not be deemed to have created a risk that was “substantially greater than is required for ordinary negligence” or that the risk involved “an easily perceptible danger of death or substantial physical harm.”

The Court reached a similar conclusion regarding Boulter’s claims of intentional conduct. The Court did not Boulter’s argument that the trial court erred in finding that Cohen did not owe her a duty of care.

Borofsky, Amodeo-Vickery & Bandazian, of Manchester (Stephen Borofsky and Kara Simard on the brief, and Borofsky orally), for the plaintiff. Sulloway & Hollis, of Concord, (Derek Lick on the brief and orally), for the defendant.

Diana Camire v. The Gunstock Area Commission
No. 2013-258
June 18, 2014
  • Whether the trial court erred in granting summary judgment in favor of the defendant on the plaintiff’s claims of damages for recklessness & negligence.
On Feb. 21, 2010, plaintiff Diana Camire visited the defendant’s ski and snowboard area. There was a sign posted on the wall of the ticket booth that recited (in part) the language of RSA-225:A 24. The sign also stated that “By purchasing and/or affixing a ticket to use our facilities, you are agreeing to accept, as a matter of law, all inherent risks of winter sports activities and agree not to sue Gunstock for negligence or any other legal claim.”

Later that day, Camire was snowboarding on a trail at Gunstock when she was struck from behind by a Gunstock snowboard instructor and was injured. The instructor was not teaching any lessons at the time of the collision.

Camire sued Gunstock, asserting three counts based on vicarious liability for 1.) the instructor’s alleged negligent and reckless conduct 2.) Gunstock was directly liable for negligently hiring, training and supervising the instructor. The trial court granted Gunstock’s motion for summary judgment on all claims.

On appeal, the plaintiff argues that 1.) The trial court erred by determining that the liability release barred her claims in the absence of evidence that she waived her right to sue. 2.) The trial court erred in its finding that the instructor was not working for defendant Gunstock at the time of the collision. 3.) RSA 225-A: 24, I does not bar recovery for a ski operator’s negligent supervision of its employees and the negligence of its agents in the violation of their duties.

The Supreme Court addressed the applicability of RSA 225-A: 24, I (RSA 225) even though it was never addressed in trial court proceedings. Whether the statute precludes Camire’s claims is a question of statutory interpretation.

Camire argued that RSA 225 did not prohibit her claims because the language in the statute, “collisions of other skiers or persons,” does not include employees of the ski operator. The Court found that the legislature intended to include collisions with ski area employees as an inherent risk, regardless of whether they were on the clock at the time of the collision.

The instant situation is contrasted with with Aide v. Temple Mt. Ski Area 108 N.H. 480 (1968).

In Aide, the issue was whether or not the law precluded an action for negligence against a defendant who had endeavored to instruct skiers. The instruction of skiers was not mentioned in the statute. Here, however, Camire’s claims of negligence are directed addressed by RSA 225-A: 24, I.

The Court holds that RSA 225-A: 24, I bars Camire’s liability claims as a matter of law. Thus, it does not need to decide whether the instructor was acting within the scope of his employment at the time of the crash.

Camire’s final argument was that summary judgment was improperly granted on her claim that Gunstock negligently hired, trained and supervised the instructor. Camire cited a case on appeal in support of her assertion, but did not develop an argument as to why the trial court made an error by granting summary judgment. The Court determined that this argument was not sufficiently briefed for an appeal and declined to renew it.

McLaughlin Law Office, of Laconia (Emily McLaughlin on the brief and orally), for the plaintiff. Devine, Millimet & Branch, of Manchester (Thomas Quarles Jr. and Leigh Willey on the brief, and Quarles orally), for the defendant.

England v. Brianas
No. 2013-206
June 18, 2014
  • Whether an action for negligence showed that a legal duty that was owed to the plaintiff.
In 2009, defendant Maria Brianas and Allen Bryson had an intimate relationship that ended when Bryson moved to a different state. Bryson later returned to New Hampshire and tried to rekindle the relationship. Brianas refused, telling Bryson that she believed they were incompatible.

Bryson left hostile messages on her telephone and used profane language when they had a chance encounter at a restaurant. Brianas felt that tire track in her driveway had been made by Bryson’s truck and felt that Bryson was always watching her. On Feb. 23, 2010, Brianas invited plaintiff Kenneth England home from the Eagles Club. Both were unaware that Bryson had broken into Brianas’s home.

Bryson attacked England when England entered Brianas’ kitchen. The trial court dismissed England’s negligence action against Brianas.

On appeal to the NH Supreme Court, plaintiff England argued that the trial court should have found that special circumstances existed between him and Brianas that would have supported the existence of a special legal duty to warn him or protect him from Bryson. In response, Brianas argues that England did not allege special circumstances or a relationship that created a duty to warn him about Bryson.

Because the instant case hinges on whether Brianas had a duty to England, the Court further discussed the element of “duty.” Citing Walls v. Oxford Management Co., the Court reminded the parties that private persons do not have a general duty to protect third parties from criminal acts.

England relied heavily on Dupont v. Aavid Thermal Technologies, 147 N.H. 706 (2002). The Court did not find Dupont to be comparable to the instant case. The Court highlighted its conclusion in Dupont that the supervisors had knowledge of the attacker’s violent history and failed to take reasonable steps to protect the plaintiff.

The Court noted, however, that England conceded that Brianas was unaware that Bryson had broken into her home.

The Court found Fiala v. Rains, 519 N.W.2D 386 (Iowa 1984) and Patzwald v. Cray, 390 N.W. 2D 920 (Minn. Ct. App. 1986) to be more analogous to the instant case. Faila found that no duty of care existed between the plaintiff and the defendant. There was no evidence that the defendant’s disgruntled boyfriend had ever threatened the plaintiff. In the instant case, there was a complete lack of evidence that would have altered Brianas to an impending assault by Bryson.

The Patzwald court found that guests had a wedding reception did not have a special relationship to the host that would require the host to warn them of an unforeseeable harm. In that case, the boyfriend of a woman hosting a wedding reception appeared at the reception and fired a rifle into the crowd. The court noted that defendant Brianas was unaware of Bryson’s propensity for violence. Brianas knew only that Bryson left angry messages on her phone and used profanity when he addressed her in a public place. The court found that Bryson’s alleged conduct was insufficient as a matter of law to make Bryson’s attack foreseeable such that Brianas had a duty to warn the plaintiff.

The court concluded by citing Berry v. Watchtower Bible & Tract Society, 152 N.H. 407 (2005). In Berry, the court stated that the common law narrowly defines civil liability for the failure to prevent criminal acts by other parties. To mandate otherwise would lead to people being responsible for situations that they did not create and were unable to control. Brianas had no duty to warn England that she was being harassed by a potentially dangerous stalker.

Waystack Frizzell, Trial Lawyers, of Colebrook (Jonathan Frizzell on the brief and orally), for the plaintiff. Primmer, Piper, Eggleston & Cramer, of Littleton (Gregory Eaton on the brief and orally), for the defendant.

Constitutional Law
David P. Eby & a. v. State of New Hampshire
No. 2013-035
June 13, 2014
  • Whether the Gambling Winnings Tax (GWT) violated the uniformity requirement of the New Hampshire Constitution
  • Whether the GWT violated the constitutional requirements of fairness, reasonableness, and proportionality
  • Whether the GWT violated the federal commerce clause
Effective July 1, 2009, the NH Legislature codified the Gambling Winnings Tax (GWT) as RSA 77:38-:50 (Supp. 2009) (repealed 2011). The legislation defined gambling winnings as “winnings from lotteries and games of chance including, but not limited to bingo, slot machines, keno, poker tournaments, and any other gambling winnings subject to federal income tax withholding.” The GWT applied to gains made by New Hampshire residents and non-residents who won games of chance inside the state. Even though RSA 77:38-50 was repealed on May 23, 2011, the repeal was not retroactive. The GWT was assessed on the gambling winnings of New Hampshire residents between July 1, 2009 and May 22, 2011.

This case was filed as a class action in 2010 by the Leighton petitioners and petitioner Willey. The petitioners sought a declaratory judgment that the Gambling Winnings Tax was illegal and unconstitutional on its face as applied to both pre-enactment lottery winnings received as annuity payments and professional gamblers. The petitioners sought a refund of all such taxes collected or withheld. Eby was added as a substitute party during the course of the litigation. He is a New Hampshire resident who won $10 from a New Hampshire scratch ticket.

Initially, the parties agreed that there were no issues of material fact, and the case could be decided on legal issues. The parties also agreed to postpone class certification until the resolution of all legal issues.

At the parties’ request, the trial court approved an interlocutory transfer to the NH Supreme Court that was subsequently denied by the court. In 2011, the Leighton petitioners resolved their claims against the state and Eby was added as a party. The trial court had denied a motion for summary judgment and granted the state’s cross motion for summary judgment. The trial court found that the GWT violated neither the state nor the federal constitution.

The trial court also found a genuine issue of material fact as to whether Willey was a “professional gambler.” The trial court set forth factors that it would use to determine whether Willey was a professional gambler, including the Internal Revenue Services’ test to determine if a taxpayer’s activities constitute a trade or a business.

The petitioners concluded that Willey did not meet the definition of a professional gambler under the test enumerated by the trial court; but reserved the right to appeal the court’s use of the test. The petitioners also disputed the trial court’s ruling that only a professional gambler could raise as-applied constitutional arguments on behalf of a class of professional gamblers.

The declaratory judgment statute was amended in 2012 to expand “taxpayer standing” to challenge governmental actions. Thereafter, the petitioners filed a motion for summary judgment and argued that the amended statute gave them the standing necessary to raise all constitutional issues. The state objected and moved to dismiss. The trial court granted the state’s motion, but denied the petitioner’s motion, and this appeal followed.

The NH Supreme Court reviewed the constitutionality of statues de novo. A statute will be declared invalid only if a clear and substantial conflict exists between the statute and the constitution. A facial challenge to the statutes is an assertion that there are no existing circumstances under which the statute would be valid. An as-applied challenge concedes that the statute under review is constitutionally valid in some circumstances but contends that the statute is unconstitutional under the particular circumstances of the case.

The court held that there were just reasons for the classification of gambling winnings as a distinct income classification for tax purposes under the constitution.

The petitioners alleged that the GWT was unfair because it taxed gambling winnings at 10 percent rate while interest and dividends are taxed at 5 percent. They argue that gambling winnings and interest and dividends are all part of a broader classification called gross income and that, to achieve uniformity throughout the class, the taxes had to be assessed at an equal rate.

The petitioners asserted that the trial court misinterpreted a 1977 Opinion of Justices stating that there was a rational basis for determining that income from capital gains was sufficiently different from income derived from interest and dividends to justify their separate classification and different rates of assessment. The petitioners claim that the court later clarified its opinion to say that gross/net income classifications had endured through a two-decade proliferation of classifications. The court’s real analysis in the supposed clarification opinion was whether a given piece of legislation taxed a classification of business income at a different rate than a tax that already existed on the same classification of income.

The petitioners also argued that gambling winnings are not sufficiently different from interest and dividend income to justify their separate classification and assessment. The Court disagreed. It has found in earlier cases that the rule of equality and proportionality does not apply to the subjects of taxation. There must be a just reason for the selection made.

The court also outlined many inherent differences between games of chance or lotteries and other forms of income.

The court disagreed that the GWT is inherently “unfair, unreasonable, and disproportional” under the New Hampshire Constitution.

The petitioners alleged that the GWT was inherently unfair because it did not allow taxpayers to offset their gambling losses against their winnings. The court took the petitioners to task for not citing any authority to support their assertion that other jurisdictions would consider it unconstitutional to tax gambling winnings and forbid the deduction of losses. Nor did the petitioners cite any New Hampshire authority for the specific proposition that a tax on gross income is unfair, unreasonable and not proportionate.

According to the court, the petitioner’s arguments can be boiled “down to the question of whether the Legislature may tax gross income, or whether doing so is unconstitutionally unfair, unreasonable, and disproportionate.” The court reminded the petitioners that it has found taxes on gross income to be constitutional. The court found that, in making its decisions regarding taxation, the Legislature simply made its decision to tax gross gambling income rather than net gambling income.

The court would not consider the petitioner’s claims that the GWT violated the federal commerce clause because the petitioners did not have standing to challenge the GWT under the federal constitution.

The court recognized that the petitioners paid the gambling tax. Thus, they could have claimed that they suffered an injury analogous to the plaintiffs in Wine and Spirits Retailers, Inc. v. Rhode Island, 481 F.3d 1 (1st Cir. 2007). According to the first circuit, the plaintiffs were already residents of Rhode Island and, therefore, could not have suffered harm resulting from the requirement that only Rhode Island residents could obtain liquor licenses.

The New Hampshire Court reasoned that the injury to the non-resident plaintiffs would have occurred once Rhode Island withdrew their liquor licenses or nullified their franchise enlargements. Like the Wine and Spirits plaintiffs, neither petitioner in the case before the court alleged an injury with a causal nexus to a dormant commerce clause violation. The petitioners have not alleged that they suffered harm under the GWT due to an unjustifiable burden on interstate commerce. Nor, since the tax was repealed in 2011, can the petitioners claim that the will suffer harm in the future.

Petitioner Eby is a New Hampshire resident who paid the taxes on a scratch ticket that he purchased in New Hampshire. Although Willey derived his 2009 gambling winnings from out-of-state sources, those winnings were taxed at the same rate as any winnings derived from sources inside New Hampshire. Willey did not allege that he was taxed disproportionately because his winnings were derived from a different state. Nor does he allege that the potential for double taxation discouraged him from gambling in another state.

The court held that the petitioners lack standing to raise a challenge that the GWT is unconstitutional as applied to professional gamblers.

The petitioners argued that the state is estopped from denying that Willey is a professional gambler because the state had already stipulated to that fact on the interlocutory transfer statement (ITS). The petitioners also claimed that the trial court should not have used criteria that was adopted by the IRS to determine whether a taxpayer’s activity is a trade or a business. The court found that both arguments fail.

Judicial estoppel prevents a party from using one argument to prevail in a phase of a case and then using a contradictory argument to proceed further. The application of judicial estoppel is informed by three factors: 1) whether the later position is clearly inconsistent with the earlier position, 2) whether the court accepted the earlier position, and 3) whether the party seeking to advance the later position would derive an unfair advantage or impose a detriment that is unfair.

The court agreed with an earlier determination by the trial court that the state derives no unfair advantage by challenging Willey’s status as a professional gambler. Since the ITS was denied, the court states that the petitioners can show neither an unfair advantage to the state nor an unfair detriment to themselves. It does not matter that the state’s current position on Willey’s status as a professional gambler is inconsistent with the ITS. Had the state challenged Willey’s status prior to the ITS request, it could have objected to the interlocutory transfer. Alternatively, if Willey’s status had been at issue, the trial court could have either denied the transfer or included Willey’s status as a question on the petition to the court.

The petitioners argued that the trial court should not have used definitions from any source other than the tax statutes under review. The petitioners wanted the court to apply a test on a case-by case-basis and to find that Willey was a professional gambler. In support, the petitioners alleged that for three years, Willey derived almost all of his earned income from gambling.

The court noted that no New Hampshire statute defines the term “professional gambler.” It found that the trial court properly concluded that the factors listed in the Hughes case were relevant to the fact-based determination that Willey is a professional gambler.

The court ruled that Willey does not have standing to raise arguments on behalf of all persons in the class. Nor does the amended declaratory judgment act give the petitioners standing to seek a declaratory judgment stating that the GWT is unconstitutional.

The court reminded the petitioners that, although they brought the suit as a class action, they do not automatically have standing to bring the suit. The court found that even the cases cited by petitioners are in support of the general rule that “to represent a class, the petitioners must be part of that class, possessing the same interest and suffering the same injury as the class members.”

The Court ruled that the petitioners had a right to challenge assessment of a tax by appealing to the Board of Tax and Land Appeals (BTLA). Thus, because the petitioners have the right to appeal the assessment of the GWT, they do not have standing to bring a taxpayer suit under the declaratory judgment act.

The court found that the petitioners may not even bring an appeal to the BTLA, because they have not been subjected to the GWT under the circumstances in which they claim it is unconstitutional.

The court affirmed the orders of the trial court that 1.) granted summary judgment in favor of the State, 2.) denied the petitioner’s motion for summary judgment and 3.) dismissed the remaining claims of the petitioners.

Devine, Millimet & Branch, of Manchester (Thomas Quarles Jr. and Joshua Wyatt on the brief, and Wyatt orally), for the petitioners. Joseph Foster, attorney general (Laura Lombardi, assistant attorney general, on the brief and orally), for the state.

State of New Hampshire v. William Gaudet
No. 2012-581
June 13, 2014
  • Whether the trial court erroneously determined that statements by defense counsel “opened the door” to inadmissible evidence
  • Whether the trial court properly denied the defendant’s motions to dismiss
Petitioner William Gaudet was convicted of sexual assault against a relative in New Hampshire. The acts happened in 2001 and 2005, although the second act was not reported until 2010. The victim was told by Gaudet’s former business partner, Raymond, that Gaudet had some money. Raymond was aware of the victim’s allegations against Gaudet and advised the victim to file suit against Gaudet.

The victim filed a civil suit against Gaudet in Maine. Her suit was still pending when Gaudet was brought up on charges of attempted misdemeanor sexual assault, one count of attempted aggravated felonious sexual assault, and one count of incest.

The relevance of the civil suit in Gaudet’s criminal trial was the subject of much discussion between counsel and the trial court. The trial court decided that the defense could refer to the civil suit in its opening statement but ruled that if defense counsel created a misleading assumption that the charges in New Hampshire are the only basis for the civil suit, the state would be allowed to clarify that the lawsuit concerns more than the events charged in New Hampshire.

Defense counsel’s opening, excerpted in the opinion, referred to the victim’s need for money being part of the allegations in the civil suit. Counsel intimated that the victim’s need to win the civil suit provided a motive for her to lie about events in New Hampshire. The state objected and the trial court ruled that the defense’s opening was misleading.

The trial court looked at New Hampshire Rule of Evidence 403 and found that, since the defense decided to open with a reference to the civil suit, the state is “not precluded from having the jury understand that there is more to that lawsuit.” The state was allowed to ask the victim questions about her motive for filing a civil suit. The state could not, however, question the victim about specific bad acts that happened in Maine.

Juror number 10 (Juror 10) asked to speak to the court before the second day of jury deliberations began. Juror 10 presented the court with a note summarizing the reasons for the juror’s decision that he could no longer remain impartial.

The court conversed with Juror 10; asking him if he had shared his thoughts with other members of the jury. He said no. The state asked that Juror 10 be dismissed and that an alternate should serve in his place. The court then conducted a limited voir dire of the remaining jurors, asking whether they could set aside all deliberations up to that point and base their decisions on the evidence and the court’s instructions regarding the law. All the jurors but one answered yes. After more specific questioning, that juror was also dismissed.

Gaudet argued on appeal that the trial court’s discretion was unsustainable when it found that defense counsel’s statement opened the door to the victim’s testimony about uncharged conduct. The court assumed, without deciding, that the trial court erred when it ruled that the defendant’s opening was misleading. The court considered whether the ruling was unreasonable so that it prejudiced Gaudet’s case. Gaudet contended that the ruling is unsustainable because it conveyed to the jury that Gaudet committed other acts against the victim. The court disagreed, noting that the jury was told twice that it could not consider whether the acts described in the victim’s civil suit actually occurred.

The trial court’s instructions, which the court presumed were heeded by the jury, minimized the possibility that the jury would misuse the evidence and thus reduced the possibility of unfair prejudice.

The court held that Gaudet had failed to carry his burden of proving that the trial court ruling was clearly untenable or unreasonable to the prejudice of his case.

The court next considered Gaudet’s three motions for a mistrial (one during the opening statements and two during closing arguments). For a mistrial to be declared based on a prosecutor’s opening statement, the prosecutor must be shown to have acted in bad faith, the opening statement must be completely unsupported by the evidence, and the defendant must have been prejudiced by the opening statement.

When Gaudet’s counsel objected to a statement made by the prosecutor and moved for a mistrial, the trial court sustained the objection, denied the motion for a mistrial, and issued a curative instruction to the jury.

The Supreme Court assumed that the prosecutor’s comment was improper but did not find that the prosecutor acted in bad faith. The court also reasoned that any possible prejudice was eliminated by the curative instruction to the jury. The Court held that the trial court did not abuse its discretion when it denied the motion for a mistrial.

Next, the court considered the two motions made during closing arguments. Gaudet’s first motion was made when the state used testimony about the victim’s fear of physical harm at the hands of the defendant. Defense counsel objected, and the motion for a mistrial contended that testimony about physical abuse was allowed with the sole purpose of countering a false impression about her motive for filing a civil suit. The trial court agreed with defense counsel, stating that it did not allow the testimony about the allegation in the civil suit for the underlying assertion. The court allowed the testimony because the door was opened by the defense.

The court ruled that the comment made by the prosecutor was not improper. The assertion by the prosecutor that the victim was afraid of Gaudet and did not report the assaults was a permissible response to the defense’s contention that the allegations against Gaudet were untrue and made only to advance the victim’s civil suit.

The court noted that the trial court issued a curative instruction to the jury that cured any prejudice that the prosecutor’s closing comment might have caused. The court held that the trial court’s discretion was not unsustainable when it denied the motion for a mistrial.

Gaudet’s second motion for a mistrial arose from a statement made by the prosecutor that referred to the civil suit as a motive for the victim’s delay in reporting the sexual assaults. The prosecutor admitted that an error was made but the error was not made in bad faith. The trial court ruled that the statement was improper but that a mistrial was not warranted.

The Court cannot say the trial court’s denial of the second mistrial motion was an unsustainable exercise of discretion. It noted that “[T]he trial court’s thorough instruction cured any possible prejudice.

Gaudet also alleged that the trial court’s voir dire of the jurors that remained after Juror 10’s dismissal was insufficient to determine whether they considered the same improper matters as that juror. The court found that Gaudet did not preserve that argument for its review.

The Court found that the trial judge followed the proper procedure by removing the offending juror and undertaking a voir dire of the remaining panel. Because there was no claim of prejudice to Gaudet’s case, it was up to the trial court to decide the nature and extent of its inquiry into the situation.

Joseph Foster, attorney general (Lisa Wolford, assistant attorney general, on the brief and orally), for the state. Christopher Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

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