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Bar News - June 17, 2015


Supreme Court At-a-Glance

By:

Administrative Law

Marco Petroleum Industries, Inc. v. Commissioner, New Hampshire DOS
No. 2014-117
May 12, 2015
Affirmed

  • Whether the petitioner (1) acted as a distributor of motor fuels under RSA 259:21, (2) did “sell” motor fuel under RSA 260:32, (3) was fairly required to pay the New Hampshire road toll after it had already paid the Massachusetts fuel tax.

On appeal from the Superior Court, the petitioner sought to overturn an administrative decision finding that the petitioner owed the state $155,000, including interest and penalties for the petitioner’s failure to pay the New Hampshire road toll on fuel imported into the state. On several occasions between June 2008 and March 2011, Marco contracted with Irving Oil Terminals Inc. (Irving) for the purchase of diesel fuel from its facility in Revere, Mass. Included in this purchase was the transfer of the fuel by Irving, into trucks operated by PS Marston LLC (Marston). Marston transported the fuel from revere to Marco’s facility in North Hampton, NH. Marston invoiced Marco for the deliveries, and Marco paid those bills. For each purchase, Marco paid the Massachusetts fuel tax to Irving, and Irving forwarded the funds to Massachusetts.

In 2012, the NH Department of Safety (DOS) audited Marco’s “Motor Fuel Distributor” account, concluding that Marco “imported motor fuel into New Hampshire without a Motor Fuel Distributor License and therefore failed to report and pay the required New Hampshire Road Toll. The DOS upheld the audit at a subsequent administrative hearing, finding that Marco acted as a distributor of motor fuel. Marco appealed this decision to the Superior Court, which again upheld the DOS’s ruling.

The Court first found that Marco acted as a “distributor” as defined by RSA 259:21, when he imported or caused to be imported motor fuel into New Hampshire. The Court next found that Marco’s use of the fuel fell within the definition of “sale in RSA 259:95, because he purchased the fuel for his own use exclusively on the roads of New Hampshire.

The Court then rejected Marco’s argument that it is unfair to require it to pay the New Hampshire road toll when it had already paid the Massachusetts fuel tax. Marco failed to avail itself of the rules of the International Fuel Tax Act to prevent this double payment. According to Massachusetts law, Marco, not the DOS, had the responsibility to recover the Massachusetts fuel tax that it paid to Irving. The fact that Marco, due to its own inaction, is time-barred from recovering the fuel tax paid to Massachusetts does not excuse it from paying the New Hampshire road toll.

Douglas, Leonard & Garvey of Concord (Charles G. Douglas, III on the brief, and Jason R.L. Major orally), for the petitioner. Joseph A. Foster, attorney general (John J. Conforti, assistant attorney general, on the brief and orally), for the respondent.


State v. Wayne A. Bickford & a.
No. 2013-796
May 19, 2015
Affirmed

  • Whether a permit granted by the USDOT’s Federal Motor Carrier Safety Administration preempts the local ordinances requiring a license to operate a taxicab service

The defendants were charged with operating a taxicab business without a license from the city of Manchester. The State appeals an order of the Circuit Court granting the defendant’s motion to dismiss on federal preemption grounds, arguing that the local ordinances are not preempted by federal law and that the circuit court has jurisdiction over the charges.

Mandelbaum owns Amoskeag Airport Service (AAS), a sole proprietorship in Manchester, and Amoskeag Black Car (ABC), a sole trade name for a subdivision of AAS. Mandelbaum operates these businesses pursuant to a motor carrier permit issued by the USDOT’s Federal Motor Carrier Safety Administration. The defendant asserts the license grants him the authority “to engage in the transportation as a common carrier of passengers… by motor vehicle in interstate or foreign commerce.” Mandelbaum does not hold a city license to operate a taxicab service.

The remaining defendants are drivers for AAS and ABC. In March and April of 2013, each was cited by Manchester police for operating a taxicab service in violation of the city’s ordinances. On two occasions, Mandelbaum was also issued a citation for the same reasons.

On July 8, 2013, the defendants moved to dismiss the citations, arguing that: (1) federal law preempts the city ordinances; (2) Mandelbaum’s FMSCA certification divests the city of jurisdiction to regulate AAS or ABC; and (3) neither AAS or ABC constitutes a taxicab service as defined by statute or ordinance. The state objected, and after a hearing, the trial court granted the defendant’s motion to dismiss “without prejudice to the State’s right to petition the FMSCA for further review of the defendant’s activities.” The state filed a motion to reconsider, which was denied, and this appeal followed.

The Court first addressed whether federal law preempts the city ordinances. The defendants did not argue that Congress expressly displaced state law, but that “federal law clearly exempts taxicab services from FMCSA regulation” and that “Mandelbaum’s business cannot be licensed both under the FMCSA Certificate and local Manchester, NH taxicab ordinances.” The Court rejected this argument.

The Court acknowledged Congress explicitly denied the federal government jurisdiction over taxicab services. However, under the applicable statutes, the Federal government has jurisdiction over motor carriers only when they are engaging in interstate commerce, or transit to be within the jurisdiction of the Secretary, and thus the FMSCA. Purely intrastate activities are left to state and local authorities to regulate. The Court concluded that the defendants failed to demonstrate that the state and federal law actually conflict, as they failed to show that they could not comply with both the federal law and city ordinances.

The Court then addressed the defendants’ argument that the primary jurisdiction doctrine justifies a stay of the court proceedings and a determination of the issue by the FMCSA in the first instance. The Court rejected this premise, as the dispositive issue in this case was whether the defendants’ activities constituted a taxicab service under the city ordinances, rather than the defendants’ compliance with their federal operating authority. Thus, as this is not an issue within the special competence of the FMCSA, the primary jurisdiction doctrine is inapplicable.

Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney general, on the brief and orally), for the State. Brennan, Caron, Lenehan & Iacopino, of Manchester, (Michael J. Iacopino and Jenna M. Bergeron on the brief, and Mr. Iacopino orally), for the defendants.


Criminal Law

The State of New Hampshire v. Jeffrey Maxfield
No. 2014-200
May 19, 2015
Reverse and Remand

  • Whether RSA 625:8 requires an inquiry into the reasonableness of a delay in executing an arrest warrant

On Dec. 21, 2011, Lincoln police prepared a complaint charging the defendant with criminal mischief. A week later, a justice of the peace issued a warrant for his arrest. However, the arrest warrant was not executed until Aug. 6, 2013. The state filed the complaint in court on Aug.9.

The defendant moved to dismiss the charge, arguing that the delay between the issuance of the arrest warrant and his arrest violated his rights to a speedy trial, due process, and fundamental fairness under both the New Hampshire and United States Constitutions. The trial court denied this motion.

The defendant then filed a second motion to dismiss, arguing that the charge was barred by the one-year statute of limitations applicable to misdemeanor level offenses. The trial court granted the defendant’s second motion to dismiss, stating that it “was unreasonable for there to be a delay of 18 months between commencement of prosecution and the commencement of the adversarial proceeding.” This appeal followed.

On appeal, the state argues that the one-year period of limitations that applied to the defendant’s criminal mischief charge was not violated, and that the trial court erred in applying a reasonableness standard, because the plain language of RSA 625:8, V states merely that “[a] prosecution is commenced on the day when a warrant… is issued,” and does not provide for an inquiry into whether the warrant was executed in a reasonable amount of time. The defendant responds that although the Sstate’s interpretation is of the statute is “literal,” it is “ultimately not reasonable.”

The Court found that the trial court erred in applying a reasonableness test and granting the defendant’s motion to dismiss. The court noted that the language of the statute is plain and unambiguous, and that it will not add language to the statute that the legislature did not see fit to include.

The Court finally rejected the defendant’s argument that a plain reading of RSA 625:8 would produce an absurd result. The court explained that a criminal defendant’s right to due process of law under the state and federal constitutions would protect against any overly stale prosecution under the law. The court also noted that although it would not read a reasonableness test into the plain language of the statute, it recommended that the legislature revisit the law and consider if it should be amended.

Justice Carol Ann Conboy dissented, concluding that the trial court did not err by interpreting RSA 625:8, V (2007) to require an inquiry into the reasonableness of the delay in executing an arrest warrant.

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


State v. Steven Laux
No. 2014-595
May 22, 2015
Reverse and Remand

  • Whether a circuit court has the inherent authority to compel the State to turn over police reports before a probable cause hearing, and whether police reports are protected under the work product doctrine.

The state appealed an order of the circuit court dismissing the habitual offender prosecution of the defendant based upon the state’s failure to provide discovery prior to the probable cause hearing in accordance with the court’s standing discovery order.

The defendant was arrested for driving while certified as a habitual offender, a felony level offense. Prior to the probable cause hearing, scheduled April 21, 2014, the defendant sought police reports from the state in accordance with the court’s standing discovery order, which states that “upon receipt of an appearance by counsel for the defense or upon waiver of counsel, the state shall provide the defendant’s counsel a copy of any prepared police reports.”

The state indicated that it would not comply with the order. The court postponed the hearing, and after both sides briefed the issue, decided that it had authority to order discovery and granted the defendants motion to dismiss for the States refusal to comply.

In its appeal, the state contended that no statute or court rule granted the circuit court authority to order discovery in a probable cause hearing. Conversely, the defendant argued that, absent such extrinsic authority, the circuit court has inherent authority to compel such discovery.

The Court found that in this instance, the circuit court exceeded its authority in requiring, through its standing court order, the disclosure of prepared police reports in all cases.

The Court ruled that the circuit court has the inherent authority, within its sound discretion, to order discovery prior to the preliminary hearing when the accused has made a particularized showing that the discovery is needed to show a lack of probable cause and the court concludes that the interest of justice require disclosure.

The Court also held that prepared police reports are not categorically protected under the work product doctrine, and that even under circumstances not covered by Superior Court Criminal Rule 98(a), they are subject to compelled discovery under the courts inherent authority addressed above. The State may still assert work product protection and request redaction of any protected material after an in camera review by the court.

Having found the circuit court exceeded its authority, the Court concluded the dismissal of the case was an unsustainable exercise of discretion, and reversed and remanded for further proceedings.

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


State of New Hampshire v. Richard Scott
No. 2014-0407
May 12, 2015
Affirmed

  • Several issues relating to suppression of evidence, including eyewitness identification.

On July 26, 2013, Terrence Jackson was shot in the face by the defendant at a friend’s apartment. Jackson had known the defendant for a few months and had spent time with him “hanging out and selling drugs.” The defendant had confronted Jackson about threatening messages received by one of Jackson’s friends, and was upset over $600 that he owed to the defendant for drugs. The defendant pulled out a gun that he had previously borrowed from Jackson, shot him in the face and stole $10,000 in cash that Jackson had in his back pocket.

After the defendant left, Jackson called 911, telling the operator that he had been shot and did not know who shot him or the type of gun used. After the police arrived, Jackson told an officer that he was shot while sleeping and could not identify the shooter.

The next day, Detective Mucci and another detective interviewed Jackson at the hospital. Mucci knew the apartment where Jackson was shot was being investigated for drug activity, and had previous contact with Jackson and the defendant. During questioning Mucci asked Jackson if the defendant had possibly shot him. Jackson eventually said that the defendant had shot him. Jackson then provided a detailed description of the shooter. After he was released from the hospital, the police presented Jackson with a photographic lineup. Jackson selected the defendant’s photograph and wrote on the lineup that it was the defendant who shot him.

The defendant was charged with attempted murder and being a felon in possession of a deadly weapon. Before trial, he moved to suppress Jackson’s identification, arguing that it was unnecessarily suggestive, and amounted to an improper one-man show-up because Mucci provided Jackson with his name. The trial court denied this motion.

During the case, the defendant stipulated that he was a convicted felon, and that if he were convicted for the attempted murder count, he would necessarily be guilty of the felon in possession count. At the close of the state’s case-in-chief, the defendant moved to dismiss the attempted murder charge. The trial court denied the motion, and the defendant was subsequently found guilty of attempted murder and being a felon in possession. This appeal followed.

The Court first rejected the defendant’s argument that the trial court erred by denying his motion to dismiss because the court failed to consider his challenge to the weight of the evidence. The defendant failed to preserve this issue on appeal and thus the Court could not review it.

The Court next refused to modify its standard of review for claims based on the sufficiency of the evidence. Additionally the defendant appeared to concede in his brief that the evidence was sufficient.

The Court next rejected the defendant’s argument that the trial court erred by denying his motion to suppress the out-of-court and subsequent in-court identifications by Jackson. The Court found that the defendant failed to meet his burden in showing that Mucci’s question to Jackson about whether the defendant was the shooter constituted an unnecessarily suggestive identification procedure. As the out-of-court identification was valid, the in-court identification was also valid, and the trial court did not err in admitting Jackson’s identifications of the defendant.

The Court rejected the defendant’s argument that the trial court committed plain error by allowing the prosecutor to make certain comments about the “drug world” during her closing arguments. The defendant argued that the comments in the prosecutor’s closing were based on the prosecutor’s “personal knowledge of how things work in the so-called drug world,” and thus the jury was asked to base its decision upon evidence not on the record. The Court held that there was no error, because all references to the “drug world” in the closing remarks could have been reasonably drawn from the evidence presented to the jury in this case.

The Court also ruled that trial court committed no plain error in not addressing the lesser included offences, as it is not required to address them.

The Court finished by concluding that the defendant’s ineffective assistance claim cannot be raised as no factual basis for the claim appeared directly on the trial record. However, the Court’s ruling was without prejudice to any proper ancillary proceeding.

Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Dana Alan Curhan, of Boston, Massachusetts, by brief and orally, for the defendant.


State of New Hampshire v. Michael Francis
No. 2013-747
May 12, 2015
Affirmed

  • Several evidentiary issues including whether evidence was properly gathered, and whether the evidence was sufficient at trial

The defendant appeals his conviction of possession of heroin with the intent to dispense. He argues that (1) the Superior Court erred in denying his motion to suppress evidence obtained from a search of a vehicle; and (2) the Superior Court erred in denying his motion to dismiss based upon insufficient evidence that he possessed the heroin found in the vehicle.

At 5:30 p.m. on Jan. 3, 2013, Detectives Gonzales and Donahue of the Manchester Police Department were told that the defendant was wanted for a parole violation, that he was dealing drugs at a residence in Manchester, and that he might be armed. The detectives conducted surveillance of the residence in an attempt to locate the defendant to arrest him for the parole violation. They observed several people, including the defendant, enter an SUV and drive off. Because the area was not well lit, the detectives could not determine the exact number of people in the SUV or if they had anything in their hands. The detectives followed the SUV, and called for backup. Two officers responded and stopped the vehicle.

The detectives ordered each occupant out of the SUV one at a time. The defendant was the last person to leave the SUV, exiting about 30-45 seconds after the other occupants. All of the individuals were found to be unarmed. The detectives were unsure if any others remained in the vehicle because they couldn’t see through the SUV’s dirty and tinted windows. Therefore the officers decided to search the vehicle for any remaining occupants.

Without consent or a warrant, Gonzales entered the SUV, flipping the seats and looking underneath to determine if anyone was lying down in the SUV. During the sweep, he saw a partially open red backpack, with a top of a gun visible through the opening.

After the owner of the SUV refused consent to search the vehicle, a search warrant was obtained and executed. During this search, Gonzales found heroin under the driver’s seat. Inside the backpack, he found a handgun, a box of sandwich bags, and two digital scales with heroin residue on them. The defendant was arrested and charged with possession of heroin with intent to distribute.

Before trial, the defendant moved to suppress evidence seized from the SUV alleging the protective sweep was a warrantless search in violation of the New Hampshire and US Constitutions. The trial court denied the motion, ruling that the evidence was admissible pursuant to the protective sweep, exigent circumstances, and plain view exceptions to the warrant requirement.

At trial, two of the occupants of the SUV testified against the defendant, claiming that the defendant implied that he would give them heroin in exchange for a ride, and that the defendant told them not to let the police search the vehicle.

The Court first addressed the defendant’s argument that the trial court erred in denying his motion to suppress. The defendant argued that the police lacked reasonable belief that: (1) there was another person in the vehicle; and (2) any person remaining in the vehicle posed a risk of danger. Accordingly, the defendant claimed that the protective sweep violated his rights under the state and federal constitutions.

The Court held that the trial court did not err when it ruled that Gonzales reasonably believed that the searched area harbored an individual who posed a danger to those on the arrest scene. Therefore, the protective sweep was permissible. The Court noted that because the state constitution provides at least as much protection as the federal constitution under the circumstances, that it would reach the same result under either.

The Court next rejected the defendant’s argument that the trial court erred by denying his motion to dismiss because the state introduced insufficient evidence to prove that he possessed the heroin found in the SUV. The Court held that, construing all reasonable inferences in the light most favorable to the state, that a reasonable juror could have found that the defendant possessed the heroin in the SUV.

Finally, the Court found that the trial court did not err when it denied the defendant’s motion to dismiss.

Joseph A. Foster, attorney general (Geoffrey W.R. Ward, assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.


State v. Alex Ducharme
No. 2014-025
May 12, 2015
Affirmed

  • Whether reading the language of the Administrative License Suspension form to a defendant, under arrest for another charge, is sufficient to inform that defendant he is under arrest for driving under the influence

In March 2011, the bouncer at Redneck’s Bar and Grill in Antrim was called outside at around midnight to deal with an altercation that had “spilled out into the parking lot.” The police were called and an officer from the Antrim Police Department was dispatched to the bar. The officer arrived, talked with the bouncer and began talking with one of the people in the altercation.

Meanwhile, the bouncer saw the defendant drive into the parking lot, get out of the vehicle, and get into a separate altercation with another man. The bouncer went to the officer for assistance, who then broke up the fight and brought the defendant back to his cruiser. At this time the officer noted several indicators that the defendant was drunk including bloodshot eyes, the smell of alcohol on his breath, and trouble keeping his balance. The officer arrested the defendant for simple assault. Before the officer left the bar, the bouncer told him that he had seen the defendant drive into the parking lot.

At the police station, the officer read the defendant his Miranda rights after which the defendant invoked his right to remain silent, and his right to counsel. The officer then read the defendant the Administrative License Suspension (ALS) form, which starts as follows: “You have been arrested for an offense arising out of acts alleged to have been committed while you were driving under the influence of alcohol or drugs.”

The officer continued to read the rest of the form line by line, making sure that the defendant understood every line. The defendant initially refused to sign the ALS form granting consent to the requested testing. The officer gave the defendant time to think about it, and the defendant eventually signed the form agreeing to the testing. During this time the defendant told the officer that he was drunk.

Thereafter the officer administered several standard sobriety tests, which the defendant failed, and found that the defendant had a BAC of 0.17.

At trial, the defendant objected to the admission of the ALS form, and the results of the field sobriety test and breath test. He claimed that he had been arrested only for simple assault and therefore the implied consent statute did not apply. The trial court overruled the objection. The defendant moved for reconsideration several times, further asserting that the officer did not have probable cause to arrest him for DUI, and that the officers failure to explain the difference between his rights for each arrest charge would lead to the tests being suppressed under the confusion doctrine. The trial court denied each of these motions and found the defendant guilty of the DUI charge. This appeal followed.

The court first addressed that the officer did have probable cause to arrest the defendant for DUI. The court noted that under the facts as a whole, there was sufficient evidence suggesting that the defendant had committed a DUI offense.

The Court next concluded that the officer’s reading of the first line of the ALS form constituted an arrest of the defendant for DUI, because the officer had probable cause to arrest the defendant for DUI, and the defendant was already under arrest for simple assault. The Court noted, however, that it would be a better practice for the officer to clearly inform the defendant that he was also being arrested for DUI.

The Court next ruled that the trial court did not err by including the evidence obtained after the defendant invoked his Miranda rights. The Court explained that a police inquiry about whether a suspect will submit to testing does not become interrogation merely because the inquiry is made after a suspect has invoked his Miranda rights.

The Court next declined to adopt the “confusion doctrine,” as the current situation was not one that the doctrine contemplated. The Court noted that to avoid potential confusion, it would be better for officers to advise suspects that they do not have the right to consult with counsel before deciding whether to consent to testing, as that right does not apply in the context. Finally, the Court held that a rational trier of fact could have found it sufficient to establish that the defendant drove a vehicle while under the influence of intoxicating liquor.

Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Law Offices of Robert J. Moses, of Amherst (Robert J. Moses on the brief and orally), for the defendant.


Family Law

In the Matter of P.B. & a. and T.W. & a.
No. 2014-224
May 12, 2015
Affirmed

  • Several issues relating to grandparent visitation, specifically involving conflict between the grandparents and subsequent adoptive parents of the grandchild

On appeal from the 9th Circuit Court, Nashua Family Division, the petitioners sought to overturn the judicial referee’s recommendation that their petition for visitation with their grandson be denied. The respondents cross-appealed an order of the circuit court denying their motion to dismiss the petition.

CW was born to MM and KB on March 31, 2011. His birth parents died tragically on Jan. 11, 2012. Since then, the respondents, MM’s sister and brother-in-law, have cared for CW, initially as guardians, and then as adoptive parents. The petitioners, KB’s mother and father, had “consistent but not extensive contact” with CW before his birth parents died and about 16 visits after CW began residing with the respondents.

On Feb. 15, 2012, the petitioners filed a petition for grandparent visitation in the trial court. After a hearing, the trial court entered a temporary visitation order, mandating unsupervised visitation from 9 a.m.to 2 p.m. on the first and third Saturdays of every month. After the respondents adopted CW, they moved to dismiss the petition for grandparent visitation and vacate the temporary order. The trial court denied this request.

On Feb. 12, 2014, the trial court issued a final ruling on the petition for grandparent visitation, denying the petition for grandparent visitation. The trial court concluded that the respondents had demonstrated an intention to support a relationship between CW and the petitioners, and that the respondents had CW’s best interests in mind and could determine how to best integrate the petitioners into CW’s life.

The Court first upheld the circuit court order denying the motion to dismiss. The Court explained that nothing in RSA 461-A:13 divests a petitioning grandparent of standing to petition the court for visitation when their grandchild is subsequently adopted and becomes part of a new family unit. The court also expressed that because RSA 461-A:13 permits grandparents to seek visitation with both natural and adopted grandchildren, the statute does not place adoptive parents in an unconstitutional “subclass.”

The Court next rejected the petitioners’ argument that the trial court did not properly consider the fact that both natural parents died. The Court noted that the petitioners failed to establish that the trial court’s determination lacked an objective basis or that it was legally erroneous.

Next the Court rejected the petitioners’ argument that the trial court failed to consider the respondents “secret adoption,” as the trial court made no finding that the adoption was in any way secretive.

The Court rejected the petitioners’ argument that the trial court erred in denying the petition instead of modifying the visitation order, as they failed to establish any evidence that it was an unsustainable exercise of discretion.

The Court finally rejected the petitioners’ last argument as it was addressed by an earlier finding.

Law Office of Thomas Morgan of Salem (Thomas Morgan on the brief and orally), for the petitioners. Pierce Atwood of Portsmouth (Lawrence M. Edelman on the brief and orally), for the respondents.


Susan Achille v. George Achille Jr.
No. 2014-209
May 27, 2015
Affirmed

  • Several issues involving a domestic violence proceeding

In June 2012, the petitioner filed for a no-fault divorce. On the night of Dec. 4, 2012, the respondent went to the petitioner’s residence with a gun, and threatened to use it. During the ensuing argument, the respondent chased the petitioner through her home, and assaulted her. Later that month, the petitioner filed a domestic violence petition, describing the Dec. 4 incident, and pressed charges against the respondent with the police. Criminal charges were filed against the respondent.

Over the next year, the trial court repeatedly continued the final hearing in the domestic violence case at the respondent’s request. In December 2013, the court ordered that the hearing be rescheduled for after October 2014, when the criminal matters had been resolved. However, on Jan. 24, 2014, the trial court vacated its earlier scheduling order and ordered the matter be set for a final hearing. The final hearing was scheduled March 6, 2014, the same day as the hearing on the merits in the parties’ divorce.

The respondent moved to recuse Judge Susan Carbon from both proceedings because the accountant who was scheduled to testify on his behalf in the divorce also provided financial services to Judge Carbon. The respondent asserted that Judge Carbon should be recused from both because there was an integral connection between the two matters.

Following oral argument, Judge Carbon recused herself from the divorce proceeding, but denied the motion seeking her recusal from the domestic violence proceeding, explaining that there was no conflict of interest or appearance of bias in her remaining in the domestic violence case. After the domestic violence hearing, the respondent filed a motion to dismiss the petition, arguing that the petitioner failed to allege conduct that could be construed as abuse under RSA 173-b. The trial court denied the motion and granted the final domestic violence protective order.

On appeal, the respondent argues the trial court erred when it (1) vacated its earlier order, which had continued the final hearing in the domestic violence proceeding; (2) denied the respondent’s motion to recuse Judge Carbon from presiding over the domestic violence proceeding, despite having granted the respondent’s motion to recuse in the parties’ divorce proceeding; and (3) entered a final domestic violence protective order.

The Court first concluded that recusal from the domestic violence case was not required. The Court noted that these two cases were separate and not two components of a single case. The petitioner sought a no-fault divorce, and thus the results of the domestic violence ruling had no effect on the divorce proceedings. Additionally, the two cases had separate docket numbers, and the trial court did not consolidate the proceedings.

The Court next held that the trial court’s decision to hold the final hearing in March was not an unsustainable exercise of discretion. There is no constitutional right to a stay of a civil proceeding pending disposition of a related criminal case. The Court also noted that continuing the final hearing until after the criminal trial and all appeals would have contravened the high priority that the legislature has placed on avoiding delay in domestic violence proceedings.

The Court next rejected the respondent’s argument that there was insufficient evidence to support entry of a final domestic violence protective order. The Court held that, although more than a year had passed between the Dec. 4 incident and the final hearing, given the serious nature of the incident and the “long history of abuse” as found by the trial court, we conclude that the trial court did not err when it determined that the respondent represented a credible present threat to the petitioner’s safety.

The Court finished by noting that the respondent waived his other arguments by not briefing them, and declined to award attorney’s fees.

Sheehan, Phinney, Bass + Green of Manchester (John-Mark Turner and James F. Ogorchock on the brief, and Mr. Ogorchock orally), for the petitioner. Primmer Piper Eggleston & Cramer of Manchester (Doreen F. Connor on the brief and orally), for the respondent.


Labor Law – Public Employees

Appeal of New Hampshire Retirement System
No. 2014-312
May 22, 2015
Reversed and Remanded

  • Whether a change in public employee responsibilities from a “supervisor-in-name” to a “supervisor-in-fact” merits a modification of a bargaining unit excluding those positions

On Sept. 13, 1978, the Public Employee Labor Relation Board (PELRB) certified the State Employees Association (SEA) as the exclusive representative of the bargaining unit of classified state employees of the New Hampshire Retirement System (NHRS). On Dec. 7, 2011, the NHRS and the SEA entered into a collective bargaining agreement with effective dates from July 1, 2011, through June 30, 2013.

In February 2012, George Lagos became the executive director of the NHRS. In developing a new business plan, Lagos concluded that many positions in the NHRS management team lacked responsibility, accountability and authority. Lagos instituted changes to the management structure, including the training of managerial staff, and instituting performance evaluations. Several NHRS positions were affected by these changes, and were the subject of this appeal. Prior to these changes, these positions, as indicated by their job descriptions, were responsible for managing other bargaining unit employees, but were not actually performing these responsibilities. Under the new management structure, these positions now actually performed the managerial duties for which they were responsible.

On April 8, 2013, the NHRS filed a subject modification petition with the PELRB, seeking to exclude the relevant positions from the bargaining unit, as circumstances had changed and the positions were now supervisory within the meaning of RSA 273-A:8.

The SEA objected to the petition, arguing that circumstances had not changed to a degree warranting modification of the bargaining unit. A PELRB hearing officer denied the petition, the PELRB approved the decision, and subsequently denied NHRS’s motion for rehearing. This appeal followed.

The Court first rejected the SEA’s argument that the NHRS did not provide a transcript of the evidentiary hearing, which is needed to address what it contends is a mixed question of law and fact. The Court found that the matter was a strictly legal matter, as it was not based on any question of the accuracy of those facts, but the legal implications of those facts.

The Court then ruled that a change that would result in a bargaining unit violating RSA 273-A:8, II constitutes a material change in circumstances warranting modification.

The Court next found that the contested positions exercise supervisory authority involving the significant exercise of discretion, the positions have significant supervisory authority over other bargaining unit members, and have significant disciplinary authority over other bargaining unit members. Accordingly, the Court ruled that the PELRB erred as a matter of law by refusing to exclude the contested positions from the bargaining unit.

Sulloway & Hollis of Concord (Edward M. Kaplan and Katherine DeForest on the brief, and Mr. Kaplan orally), for the petitioner. Milner & Krupski of Concord (Glenn R. Milner on the brief and orally), for the respondent.


Legal Malpractice – Fee Dispute

James Conant & a. v. Timothy O’Meara & a.
No. 2013-874
May 15, 2015
Affirmed in Part, and Reversed in Part

  • Several different issues raised from a fee dispute, including: (1) relitigation of matters determined by a prior arbitration, (2) applicability of the statute of limitations, and (3) forfeiture of fees.

On May 19, 2005, Anita Conant was permanently paralyzed when she was rear-ended by a paving truck while stopped at a red light. James Conant, petitioner, retained Timothy O’Meara to represent himself and his wife and executed a contingency fee for 33.33 percent of the gross amount recovered. O’Meara filed suit on Nov. 20, 2005, and on Dec. 1, opposing counsel alerted him that the insurer did not contest liability.

Eight days later, O’Meara informed opposing counsel that he believed the suit was a policy limits case, and had been instructed to proceed to trial if the policy limits were not paid. At the time, O’Meara knew he lacked the authority to settle the case for policy limits. Upset at O’Meara’s unauthorized demand to settle, James Conant suggested that O’Meara reduce his fee. O’Meara and Conant argued over the fee agreement for some time, eventually modifying the original fee agreement, stating that O’Meara’s fee was “to be negotiated.”

Ultimately, on the day of a scheduled mediation in federal court, O’Meara informed the Conants at the courthouse “that he would not proceed with the mediation unless he received at least a $2 million fee.” Conant felt he had no choice but to sign a memorandum agreeing to that fee.

O’Meara negotiated an $11.5 million settlement subject to certain contingencies. After the mediation, the Conants dismissed O’Meara and the case settled for $11.5 million. Subsequently, the Conants agreed to pay O’Meara a $750,000 fee and hold 1,250,000 in escrow, and arbitrate the issue of how that amount should be divided. At arbitration, O’Meara testified that the Conants agreed to pay him $2 million before he left the Conants’ home on Feb. 25. In March 2009, the arbitrators awarded $837,000 of the escrow fund to O’Meara, and the remaining $413,000 to the Conants. One arbitrator dissented.

On Feb. 6, 2007, counsel for the Conants filed a grievance with the Attorney Discipline Office (ADO) alleging ethical violations by O’Meara. In the Sept. 18, 2012, order disbarring him, the Court concluded that O’Meara lied under oath when he testified that the Conants agreed to the $2 million fee at the February 25 meeting. On Oct. 17, 2012, the Conants commenced this case as an independent action in equity to disgorge all fees the Conants paid to O’Meara and his firm.

The trial court set aside the arbitration judgement, ordering O’Meara to return the $837,000 awarded in arbitration, and to disgorge the $750,000 fee the Conants paid him prior to arbitration. O’Meara appealed.

On appeal, O’Meara argued that the trial court erred in: (1) permitting the petitioners to relitigate matters determined in the prior arbitration; (2) failing to find the petitioner’s action barred by the statute of limitations; and (3) ordering fee forfeiture.

The Court first rejected O’Meara’s first argument that the Conant’s claims are barred by res judicata. As the defendant failed to challenge on appeal an alternative and sufficient basis for the trial court’s ruling on this issue, the Court did not need to address this argument.

The Court next upheld the trial court’s ruling setting aside the arbitration judgment awarding O’Meara the $837,000 as it was procured by fraud. The Court noted that the trial court properly applied the rule described in Hazel-Atlas, allowing a court to vacate a judgement past a statute of limitations, if the judgment was procured by fraud on the court.

The Court held that only fraud on the court, as recognized in Hazel-Atlas, and in particular, perjury by an officer of the court, constitutes sufficient grounds under New Hampshire law to set aside a judgement or award.

The Court held, however, that the trial court improperly required O’Meara to return the $750,000 paid to him prior to arbitration. The Court noted that because that fee was never at issue before the arbitrators, the fraud-on-the-court doctrine would not justify avoiding a time-bar on an action to recover that fee.

Orr & Reno of Concord (Jeffrey C. Spear on the brief and orally), for the petitioners. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for respondent Timothy O’Meara.


Real Property Law – Eminent Domain

Kingston Place LLC v. New Hampshire Department of Transportation
No. 2014-458
May 22, 2015
Affirmed

  • Whether the state’s delay in funding and starting an approved project, requiring an extensive easement over a property, creates a cloud on the owner’s title, violated RSA 498-A:4 and RSA 230:17, and constituted a taking by inverse condemnation.

In September 2007, the petitioner purchased a 3.26-acre lot in Kingston, on which he operates a commercial business. In November 2004, nearly three years before the petitioner bought the property, DOT held a public hearing regarding the proposed layout of a limited-access highway, which included a drainage easement on the subject property.

In June 2005, a special committee appointed by the governor and executive council voted that there was an occasion to lay out the proposed limited access highway as planned. The project will apparently not be funded until 2017.

The petitioner claims that the proposed easement significantly impacts the ability of the existing structure on the property to be expanded, and precludes the petitioner from building another building. The petitioner also claims the easement precludes the effective operation of its business on the subject property.

The petitioner argued that the June 2005 vote by the special committee was equivalent to a vote to acquire a portion of the subject property, and accordingly, the DOT was required under RSA 488-A:4, III(a) to provide notice of its offer to purchase within a “reasonable time.”

The Court rejected this argument, stating that the petitioner misconstrued the process for laying out a limited access highway. The Court noted that the process takes two steps, and it is not until the second step that the special committee votes to procure private property.

The Court rejected the petitioner’s argument that DOT violated RSA 230:17 for similar reasons.

The Court next rejected the petitioner’s argument that DOT’s delay constitutes a taking by inverse condemnation. The Court noted that such a delay alone does not amount to amount to an invasion of property or deprive the owner of use and enjoyment of property, and thus was not a taking.

The Court finally rejected the remainder of the petitioner’s argument as not warranting further discussion, and affirmed the ruling.

Stephan T. Nix, of Gilford, by brief, and Paul M. Monzione, of Wolfeboro, orally, for the petitioner. Joseph A. Foster, attorney general (Rebecca L. Woodard, assistant attorney general, on the memorandum of law and orally), for the respondent.


Voter Registration

Annemarie Guare & a. v. State of New Hampshire
No. 2014-558
May 15, 2015
Affirmed

  • Whether the language on the standard voter registration form violates Part I, Article 11 of the New Hampshire Constitution.

The sole issue in this appeal is whether the challenged language required by Laws 2012, 285:2 violates Part I, Article 11 of the New Hampshire Constitution. The challenged language reads as

follows:

“In declaring New Hampshire as my domicile, I am subject to the laws of the state of New Hampshire which apply to all residents, including laws requiring a driver to register a motor vehicle and apply for a New Hampshire driver’s license within 60 days of becoming a resident.” The challenged language was added to the standard voter registration form in 2012. In September 2012, the petitioners sued the state, alleging that the challenged language is confusing because the language conflates the statutory definitions of “domicile” and “residence,” and, therefore, violates a citizen’s constitutional right to vote.

Following several hearings, the superior court issued a preliminary injunction, which removed the language from the voter registration form until the case was resolved. In October 2012, the state filed an emergency motion for a stay, which was denied.

The petitioners filed a motion for summary judgment motion in March 2014, and the state filed its objection and cross-motion in April 2014. The trial court granted the petitioners’ motion. On appeal, the state argued that the trial court erred by applying strict scrutiny to the subject language. The state argued that the subject language imposes no burden upon a citizen’s fundamental right to vote, because it is “reasonable and nondiscriminatory.” The state also argued that any restrictions placed by the subject language are justified by the state’s interest in complying with certain provisions of the federal Help America Vote Act (HAVA).

The Court held that the challenged language was created an unreasonable burden on the right to vote in New Hampshire because the challenged language was confusing, inaccurate, and could cause an otherwise qualified voter not to register to vote in New Hampshire.

The Court also held that because it had found the burden unreasonable, but not severe, it would apply an intermediate scrutiny test similar to that adopted in Akins. Under this test, the state must “articulate specific, rather than abstract state interests, and explain why the particular restriction imposed is actually necessary, meaning it actually addresses, the interest set forth.”

Applying this test, the Court found that the state failed to establish the challenged language was necessary to comply with HAVA, and that the challenged language even addresses HAVA compliance.

Accordingly, the Court affirmed the trial court’s determination that the challenged language violates Part I, Article 11 of the New Hampshire Constitution.

Shaheen & Gordon of Concord (William E. Christie and Benjamin T. Siracusa Hillman on the brief, and Mr. Christie orally), American Civil Liberties Union of New Hampshire, of Concord (Gilles R. Bissonnette on the brief), and Sisti Law Offices, of Portsmouth (Alan J. Cronheim on the brief), for the petitioners. Joseph A. Foster, attorney general (Anne M. Edwards, associate attorney general, and Stephen G. LaBonte, assistant attorney general, on the brief, and Mr. LaBonte orally), for the State.

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