Bar News - February 18, 2015
Supreme Court At-a-Glance
By: Summarized by Laura Sannicandro
American Federation of Teachers – New Hampshire, & a. v. State of New Hampshire & a.
Jan. 16, 2015
Affirmed in part; reversed in part; and remanded
- Whether the legislature violated the contracts clause when it amended RSA 100-A and changed the definition of “earnable compensation,” or when it altered the method of funding cost-of-living adjustments (COLAs)
This suit pertains to legislative changes to the NH Retirement System (NHRS) (the state employee retirement plan qualified under section 401(a) of the Internal Revenue Code and funded through a trust). The percentage of “earnable compensation” contributed by state employee “members” is set by the legislature. NHRS members receive retirement benefits in proportion to the member’s “average final compensation.” The “average final compensation” is defined as the average of a member’s three highest years of “earnable compensation.”
In 2007 and 2008, the legislature amended RSA 100-A in two ways: (1) it changed the definition of “earnable compensation” by largely excluding it from “other compensation;” and (2) altered the method of funding COLAs. “Other compensation” included non-salary allowances such as clothing allowances. This suit was filed in 2009 when the plaintiffs filed a petition for declaratory and injunctive relief challenging the constitutionality of the changes to the statute under the contracts clause of the state and federal constitutions.
In November 2010, the parties filed cross-motions for summary judgment. The trial court dismissed the nine non-individual plaintiffs for lack of standing but allowed them to proceed as intervenors.
The trial court found that (1) certain members covered by RSA 100-A have a contractual right to have “other compensation” considered in the calculation of their average final compensation; (2) that the amendment re-defining “earnable compensation” was a substantial impairment as a matter of law, because it altered the compensation calculation formula for those whose rights had already vested; and (3) that the amendments to the COLA did not violate the contracts clause of the state or federal constitution because the members did not have a contractual right to a COLA.
Further, the trial court found that even if members had a contractual right to receive a COLA, the state’s infringement would survive a contract law challenge, because it was necessary to serve a substantial public purpose.
The New Hampshire Supreme Court conducted a de novo review and noted that it recently adopted the “unmistakability doctrine,” which mandates that the Court determine whether a challenged legislative enactment evinces the clear intent of the state to be bound to particular contractual obligations.
The Court noted that in contract clause challenges, there is a presumption that a law reflects a policy goal and is not intended to create a contractual right.
There is a three-part test for a contracts clause analysis: (1) whether a contractual relationship exists; (2) whether a change in law impairs that contractual relationship; and (3) whether the impairment is substantial. If challenged legislation violates the three-part test, it may stand, if the contract clause serves a significant and legitimate public purpose.
The threshold issue here was whether the NHRS created a contractual relationship with its members. The trial court concluded that a contractual relationship existed once a member’s interest vested.
Vesting refers to the period of time that a member must work to become eligible for a pension. After a member’s interest is vested, the member has a contract with the state to receive distributions under the NHRS plan. Therefore, members with vested interests under RSA 100-A have a contractual right to a fixed definition of “earnable compensation.”
The Supreme Court affirmed the trial court’s conclusion that once a member is vested, a contract is created. However, before a member’s interest vests, there is no contractual relationship, and the definition of “earnable compensation” is not finite.
The Supreme Court reversed the trial court’s ruling that the amendment changing the definition of “earnable compensation” under RSA 100-A:1, XVII violated the state’s contract clause. The Court reasoned that the statute does not demonstrate an unmistakable intent by the legislature to bind itself against prospectively changing the definition of “earnable compensation.” Here, the new statute did not attempt to be retroactive.
Last, the Supreme Court concluded that there was no contractual relationship by the NHRS to provide COLAs to its members and, therefore, there was no contract clause issue. The Court concluded that there was no indication under RSA 100-A:41-a that the legislature intended to bind itself against prospectively changing the method of funding COLAs.
Bernstein, Shur, Sawyer & Nelson of Manchester (Andru H. Volinsky, Christopher G. Aslin, and Talesha L. Caynon on the brief, and Volinsky orally); Molan, Milner & Krupski of Concord (Glenn R. Milner on the brief); Stember Feinstein Doyle Payne & Kravec of Pittsburgh, Penn. (William T. Payne and Stephen M. Pincus on the brief); and Gottesman & Hollis, of Nashua (David M. Gottesman on the brief) for plaintiffs and intervenors. Joseph A. Foster, attorney general (Richard W. Head, associate attorney general, on the brief and orally) for the state.
Getman, Schulthess & Steere of Manchester (Andrew R. Schulman on the brief) and McLane, Graf, Raulerson & Middleton of Manchester (Michael A. Delaney orally) for the New Hampshire Retirement System.
The State of New Hampshire v. Taneal C. Broadus
Jan. 22, 2015
Vacated and Remanded
- Whether baggy clothes, lying, and lack of eye contact constitute the totality of the circumstances which would allow an officer to frisk an individual and would allow subsequent evidence of narcotics to be admissible
After a bench trial, defendant Taneal Broadus was convicted on one felony count of possession of oxycodone, one felony count of possession of codeine, and one misdemeanor count of possession of marijuana. At trial, the defendant had filed a motion to suppress the evidence of oxycodone and codeine because, alleging an unconstitutional search.
In October 2011, a state trooper stopped a vehicle in Auburn after the driver discarded a cigarette. The validity of the traffic stop was not disputed. The vehicle had two occupants, the driver and the defendant. The trooper verified that both occupants held valid driver’s licenses and neither occupant had an outstanding warrant. At the time of the stop, the trooper noticed a strong marijuana smell.
First, the trooper asked the driver to step out of the vehicle and questioned her about the marijuana smell. The driver eventually told the trooper that there was a marijuana “roach” in the backseat. The trooper then asked the defendant to step out of the vehicle.
As the defendant exited the vehicle, the trooper noticed an open beer bottle at her feet. The defendant denied drinking the beer in the vehicle, but the trooper believed she was lying. The trooper noted that the defendant refrained from making eye contact and was wearing extremely baggy clothing. The trooper next conducted a pat-down search of the defendant. During the frisk, the trooper felt something in the shape of a prescription pill bottle. At trial, the trooper testified that based on his experience, individuals conceal weapons, such as razor blades, in pill bottles.
The trooper testified that the defendant lied to him about the pills and told him that she used them to treat migraines. The trooper instructed the defendant to hand over the pills, which were later identified as oxycodone and codeine that had been prescribed to another individual.
The trial court accepted the state’s argument that the trooper was justified in conducting the frisk because of the trooper’s concern about a weapon. The trial court further reasoned that narcotics should not be suppressed. The trial court ruled that the narcotics would have been inevitably found in a search incident to arrest, because the trooper would have been justified in arresting for possession of marijuana and an open container violation.
The Supreme Court found that there were not enough particularized and objective facts sufficient to give rise to reasonable suspicion that the defendant was armed and presently dangerous. Specifically, the Court observed the following: (1) neither the defendant nor the driver were suspected of a violent crime; (2) the defendant had no outstanding warrants; (3) the defendant complied with the trooper’s request; (4) the stop did not take place in a high-crime area; and (5) there was no yelling or threatening by the defendant.
The Supreme Court held that the frisk was unconstitutional under NH Const. pr. 1, art. 19 because the three factors accepted by the trial court were inadequate to support a legal search: (1) that the defendant lied; (2) the defendant refused to make eye contact; and (3) that the defendant was wearing baggy clothes.
Joseph A. Foster, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the state. Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
The State of New Hampshire v. Colleen Carr
Jan. 13, 2015
- Multiple issues on appeal regarding the sufficiency of a solicitation indictment, double jeopardy, adequacy of jury instructions, and sufficiency of the evidence
After trial by jury, defendant Colleen Carr was convicted of one count of felony criminal solicitation of accomplice to insurance fraud and two counts of felony witness tampering. On appeal, she argued that the superior court erred by denying her motion to dismiss the criminal solicitation indictment, declining to give two of her requested jury instructions, and denying her motion to dismiss the second witness tampering on double jeopardy grounds.
The defendant owned a three-level mixed-use building at 139 Union Square in Milford. The defendant’s mother and Richard Fells owned and operated separate businesses on the first floor. The defendant and her boyfriend, Conrad Kelleher, resided on the second floor. A tenant and her daughter resided on the third floor.
Kelleher testified that in late 2012, the defendant mentioned selling the building. Shortly thereafter, she told Kelleher her plan to collect $403,000 in insurance proceeds by having the building burned down. The defendant suggested to Kelleher that they move out items that they did not want ruined in the fire.
In mid-January 2013, the defendant informed the tenant of her plan. She offered to pay the defendant $7,000 for her to leave for two weeks. She further offered to help the tenant move out, store items she didn’t want ruined in the fire, and to help her find a new place to live after the fire. The defendant informed the tenant of her own plan to protect her belongings. Last, the defendant told the tenant “she didn’t care” about the businesses located on the first floor “because they all had insurance.”
Kelleher, Fells, and the tenant separately told the police about the defendant’s plan. On Jan. 17, Kelleher allowed the police to record telephone calls between him and the defendant. The police used three recorded calls to indict the defendant. In each recorded call, the defendant made incriminating statements. After the third call, the defendant telephoned the police herself and left a message with disparaging character statements about her tenant, including that the tenant had threatened to burn the building. In September 2013, the defendant sold the building for $150,000.
The NH Supreme Court held that the criminal solicitation indictment for insurance fraud was adequate in this case. The Court stated that a person is guilty of criminal solicitation if, “with a purpose that another engage in conduct constituting a crime, he commands, solicits, or requests such other person to engage in such conduct.” RSA 629:2.
The Supreme Court held that the indictment was constitutionally adequate because it contained the elements of solicitation of accomplice to insurance fraud and enough facts to notify the defendant of the charge.
The Supreme Court next held that the superior court’s decision regarding the defendant’s proposed jury instructions as to criminal solicitation and entrapment were within the discretion of the trial court. To reverse the jury instructions, the defendant would have to show that the instructions did not fairly cover the issues of law in the case or produce some evidence of entrapment.
The Supreme Court held that the defendant’s third issue on appeal, witness tampering on double jeopardy grounds, failed, because the two witness tampering convictions were based on two separate telephone calls.
Last, the Supreme Court rejected the defendant’s fourth issue on appeal regarding the sufficiency of evidence for the charges of criminal solicitation and witness tampering. The Supreme Court held that the defendant failed to satisfy her burden on appeal, which would demonstrate that the evidence was insufficient to prove guilt.
Keefe & Keefe of Wilton (William Keefe on the brief and orally), for the defendant. Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the state.
The State of New Hampshire v. Elizabeth Cloutier
Jan. 13, 2015
- Whether the defendant’s statements at the Berlin Police Department were the product of a free and unconstrained choice
The defendant and the victim were friends, and the defendant had recently helped the victim locate a safe that had been stolen from her home. The Berlin police were investigating the alleged burglary, including the stolen safe. After trial by jury, the defendant was convicted of one count of burglary.
On July 11, 2012, the defendant went to the Berlin Police Department to take a polygraph test in connection with the burglary investigation. Upon her arrival, the defendant was orally informed that her participation was entirely voluntary; she could leave at any time; the entire polygraph test and accompanying interview would be audio- and video- recorded; and she was advised her of her Miranda rights.
The polygraph test was administered by an officer and lasted almost four hours. After the polygraph, the defendant was given a short break. After the break, the defendant was reminded that this was entirely voluntary and she could leave at any time. About 20 minutes after the break, the defendant made incriminating statements and ultimately confessed. The entire interview lasted almost six hours.
Before trial, the defendant moved to suppress the statements she made following the polygraph test; she argued that the statements were involuntary and their admission at trial would violate her right to due process under the state and federal constitutions.
The defendant’s statements were admitted at trial through the videotape, and the officer’s testimony. At the close of evidence, the defendant again moved to dismiss the burglary charge.
The Supreme Court analyzed the voluntariness of the defendant’s confession under Part I, Article 15 of the NH Constitution. To be considered voluntary, a confession must be the product of an essentially free and unconstrained choice and not extracted by threats, violence, direct or implied promises of any sort, or by exertion of any improper influence.
The Court concluded that the state satisfied its burden at trial and under the totality of the circumstances, the confession was voluntary. In reaching its conclusion, the Supreme Court considered statements the officer made during the interrogation, the fact that the officers gave the defendant new Miranda warnings after the break, and that the defendant did not invoke her right to remain silent.
Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the state. Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.
The State of New Hampshire v. Justin L. Roy
Jan. 16, 2015
- Multiple issues on appeal including whether a police technical violation of RSA 595-A:7 by returning the search warrant after the seven-day statutory time limit requires suppression of the resulting evidence; whether text messages were properly admitted into evidence as required by NH R. Ev. 403 and 404(B); and whether a Brady violation caused the defendant prejudice
The defendant was convicted by a jury of two counts of kidnapping, one count of first-degree assault, four counts of second-degree assault, one count of criminal restraint, and two counts of simple assault.
The events that precipitated the defendant’s charges and ultimate conviction took place in December 2011. The defendant resided with Heather Downs and three of her children, age 11 months to 7 years, in defendant’s mobile home. The defendant was neither the father nor legal guardian.
On Dec. 18, 2011, after dinner and after the three children were put to sleep, Downs realized the defendant had removed one of the children from the mobile home and had brought the child into a heated shed. Downs requested the child’s return to the home, and the defendant said he would do so in about 20 minutes.
As the night progressed, the defendant did not do so, and the record reflects he terrorized the child in the shed before returning him to the mobile home. On Dec. 19, the defendant woke everyone in the home and screamed at and assaulted Downs and the two other children. Downs removed the children from the home and brought them to the hospital in North Conway. The child who had been in the shed with the defendant was near death, his injuries so severe that he was transported by helicopter to another hospital. The injuries included severe internal bleeding, a torn bowel, and extensive bruising all over his body. The child was on a feeding tube for 11 months during his recovery.
Doctors testified that the injuries occurred within 24 hours of being brought to the hospital and that they were more severe and extensive than those sustained by professional boxers or from a high-speed, head-on car crash. The other two children had comparatively minor injuries.
On appeal, the defendant first sought to appeal the order of the superior court, which introduced text messages pursuant to a search warrant. RSA 595-A:7 requires the police to return the warrant to the court within seven days of issuance “with a return of his actions thereon.”
Here, the warrant was issued Dec. 22, 2011; on Dec. 28, 2011, the court granted the state’s motion for a 30-day extension to file the warrant’s return. The return was not made until Jan. 31, 2012. The trial court found that the police violated RSA 595-A:7 by returning the warrant after the statutory seven-day deadline. However, the trial court found that suppression was not the appropriate remedy.
Under State v. Saide (1974), exclusion of evidence is not the appropriate remedy for mere technical violations of 595-A:7. The Supreme Court upheld the finding of the trial court and reasoned that if the Court had misconstrued the statute under Saide, then the legislature presumably would have amended RSA 595-A:7 in the past 40 years. The Court invited the legislature to revisit the requirements in the statute, particularly the failure of the statute to authorize extensions of warrants returns, unlike RSA 595-B:4. The latter statute allows a court to extend the return of administrative warrant returns beyond the seven-day period if the extension is “in the public interest.”
The defendant next sought to appeal the order of the superior court, which denied his motions in limine to exclude several text messages under New Hampshire Rules of Evidence 403 and 404(b). On appeal, the defendant bore the burden to show the trial court’s ruling was clearly untenable or unreasonable and prejudicial. The three text messages were highly offensive and grotesque. The defendant did not contest that he authored the text messages.
The Supreme Court first conducted a Rule 403 analysis and weighed the probative value of the text messages against the danger of unfair prejudice, confusion of the issues, or misleading the jury.
One of the kidnapping charges required proof that the defendant acted with a purpose to terrorize the victim. The superior court found the first two text messages probative on that element of the charge. The Supreme Court noted that although the first two text messages may have been prejudicial, the defendant failed to establish that their probative value was substantially outweighed by the danger of unfair prejudice.
The Supreme Court next conducted a 404(b) analysis as to whether the text messages should have been excluded as inadmissible propensity evidence. Under 404(b), evidence of prior bad acts is inadmissible for the purpose of proving the character of conformity, but may be admissible for other purposes, such as proof of motive. For the purpose of the analysis, the Court assumed that the text messages constituted prior bad acts under 404(b). The Court concluded that the defendant’s charge required that the defendant acted with a purpose to terrorize the child.
The Supreme Court next found that the ruling on the defendant’s motion in limine was proper as to excluding cross-examination testimony against Downs and allegations of Downs’s prior mistreatment of the children. The Court stated that the jury could have reasonably concluded that the defendant, not Downs, was responsible for kidnapping the child and severely beating him inside the shed.
The Supreme Court last found that the defendant’s Brady violation argument failed because he failed to meet his burden of showing that the violation caused prejudice. The alleged Brady violation was that the State “intentionally concealed” from the defendant a sealed motion to continue a criminal case against Downs and referenced Downs’s agreement with prosecutors.
Joseph A. Foster, attorney general (Stacey R. Kaelin, assistant attorney general, on the brief and orally), for the state. Sweeney Law Office, of Bedford (Shawn Sweeney on the brief and orally), for the defendant.
Cogswell Farm Condominium Association v. Tower Group Inc. & a.
Jan. 13, 2015
Reversed and remanded
- Whether exclusions J(1) and J(6) precluded coverage under the applicable insurance policies
Lemery Building Company Inc. (Lemery) was responsible for the construction and development of 24 residential condominium units in Atkinson. The owners of the units are now members of Cogswell Farm Condominium Association (Cogswell).
In 2009, Cogswell sued Lemery and others under allegations of negligence, breach of contract, and negligent supervision in the construction of the condo units. Cogswell specifically alleged that “weather barrier” components of the units – including the water/ice shield, flashing, siding, and vapor barrier – were defectively constructed an the resulting water leaks caused damage to the units.
Two insurance policies may apply. Acadia issued Lemery a commercial general liability insurance policy, which provided coverage from March 2000 to August 2002. Tower issued Lemery an identical policy, which provided coverage from August 2002 until November 2003. In 2001, Lemery began selling the units to third parties.
The case before the NH Supreme Court commenced in 2011, when Cogswell petitioned the superior court for a declaratory judgment against Tower, seeking a declaration that its claims against Lemery were covered under Tower’s policy. Cogswell later added Acadia to the suit. Tower and Acadia filed motions for summary judgment, arguing that Cogswell’s claims against Lemery did not trigger coverage under their policies.
Each policy contained an identical part J that excluded coverage for damage to the defectively constructed weather barriers; however, the exclusions did “not exclude coverage for the resulting damage to the otherwise nondefective ‘exterior and interior finishes’... which directly resulted from water infiltration.” J(1) excluded coverage for “property damage” to property that Lemery “own[s], rent[s], or occup[ies].” Exclusion J(6) excluded coverage for property damage to “[t]hat particular part of any property that must be restored, repaired or replaced because ‘[Lemery’s] work’ was incorrectly performed on it.” Cogswell argued that the resulting damage should constitute an “occurrence” under the insurance policies and, therefore, trigger coverage.
The superior court first declined to rule on the applicability of exclusions J(1) and J(6) and stated that it was a jury issue. Upon a motion for reconsideration, the superior court then concluded that exclusions J(1) and J(6) applied and excluded coverage.
On appeal, the NH Supreme Court focused on the exclusions under J(1) and J(6). The Court concluded that the trial court erred when it ruled that the exclusion J(1) operated as an exclusion to bar coverage for each unit after it was sold. On remand, the trial court must determine which units had been sold by Lemery but continued to be covered under the policies.
The Supreme Court concluded that exclusion J(6) was subject to more than one reasonable interpretation. Under New Hampshire law, if more than one reasonable interpretation is possible and one interpretation provides coverage, any ambiguity in the policy is construed against the insurer. The Supreme Court concluded that exclusion J(6) bars coverage for property damage to the defectively constructed portions of the condominium units, which are alleged to be the weather barriers; however, exclusion J(6) does not bar coverage for damage to those portions of the units that were not defectively constructed by Lemery but were damaged as a result of the defective work. On remand, the trial court should, consistent with the Supreme Court’s decision, determine the extent of damages that are not barred by exclusion J(6).
McDowell & Osburn of Manchester (Gordon A. Rehnborg Jr. on the brief and orally), and Scott & Scott, of Londonderry (Michael J. Scott on the brief), for the petitioner. Downs Rachlin Martin of Lebanon (Katherine M. Strickland on the brief), for respondent Tower Group. Primmer Piper Eggleston & Cramer of Manchester (Doreen F. Connor on the brief and orally), for respondent Acadia Insurance Company.
Real Property Law
Richard Holt & a. v. Gary Keer & a.
Gary Keer & a. v. Richard Holt & a.
Jan. 13, 2015
Vacated and remanded
- Whether the superior court unsustainably exercised its discretion when it refused to find the respondents in contempt, and whether the superior court had the discretion to review the statutory allegations that stemmed from a condominium owner dispute when the condominium documents included an arbitration clause
This case is the most recent in a long history of disagreements surrounding the limited common areas and common areas of a four-unit condominium complex in Hampton named “Boston.” The condominium complex and association was created in 1989 pursuant to a “Condominium Site Plan” and “Declaration of Condominium Ownership.”
Each unit is free-standing, and the structures form a rectangle on the property. Units 7 and 9 are side-by-side along Boston Road, and Units 7R and 9R are respectively behind them. In addition to the units, unit ownership includes ownership of 25 percent ownership of the common areas. Common areas also include limited common areas, which are specific to each unit, such as doorsteps, porches, and designated parking spaces.
The Keers purchased Unit 7 in 1996; at the time of their purchase, Richard Holt and his then-wife owned Unit 7R. In 1997, Richard became the sole owner of unit 7R. In 2006, Richard added his present wife, Rosanna Holt, to the deed at Unit 7R. In 1998, Richard Holt purchased unit 9R with Patricia Duquette. In the mid-2000s, the unit owners had disagreements regarding the operation of the condominium, including the allocation of costs relating to the condo units’ connection to new sewer lines, proprietary additions made by Richard Holt to units 7R and 9R, and use of the common areas.
The declaration requires the arbitration of disputes between and/or among unit owners. The feuding owners submitted their disagreements to an arbitrator. The arbitrator denied most of the requested relief but issued an order prohibiting Richard Holt or his tenants from parking two vehicles in the parking space reserved for 9R and ordered the Keers and Guthrie to pay their share of the cost to connect their units to the sewer system.
In 2009, the superior court confirmed the arbitrators decision and denied the Keers’ and Guthrie’s appeal, because the appeal stemmed from a disagreement with the arbitrator’s factual findings. The superior court stated that a failure to comply with the arbitrator’s decision “may lead to contempt findings by the court.”
In 2012, the condominium association recorded an amendment to the declaration and bylaws. This amendment changed the designation of certain condominium property from common area to limited common area, to the benefit of units 7R and 9R, and to the detriment of the remaining units.
In 2013, the Keers filed a “Motion to Bring Forward to Enforce the Court Order/Contempt” with the superior court and alleged violations with the arbitrator’s 2009 decision and that the 2012 amendment to the declaration infringed on their equal undivided interest in the common areas and violated the terms of the 2009 Condominium Act. The superior court denied their motion on May 31, 2013.
In April 2013, the condominium owners recorded another change to the documents. This change required written consent of three-fourths of unit owners to waive restrictive covenants and reduced the attendance requirement at meetings to three-fourths of unit owners.
On June 27, 2013, the trial court denied the Keers’ motion to reconsider and stated that “the Keers continue to file motions challenging the court’s past decisions regarding the Condominium rules” and that it would not entertain further motions on the issue.
The case before the Supreme Court stems from the Keers’ appeal of the trial court’s denial of the Keers’ motion for contempt. The issue before the court was whether the trial court’s denial of the Keers’ motion for contempt was an unsustainable exercise of discretion.
The Supreme Court concluded that the trial court’s decision is unsustainable. The Supreme Court held that the trial court either misconstrued the nature of the Keers’ request or simply failed to address their statutory claims. It further held that the 2012 amendment was unlawful under RSA 356-B:19.
Ducharme Law of Portsmouth (Robert E. Ducharme on the brief and orally), for the petitioners.
Shaines & McEachern of Portsmouth (Paul McEachern on the brief and orally), for the respondents.