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Bar News - October 21, 2015


Supreme Court At-a-Glance

By:

September 2015

Criminal Law

State of NH v. Christopher Boisvert
No. 2014-0264
Sept. 22, 2015
Affirmed

  • Whether a third party improperly receiving welfare benefits is absolved of criminal liability for his or her own misrepresentation or other fraudulent act when the third party does not have the same culpable mental state as the defendant charged with welfare fraud

Defendant Christopher Boisvert appealed his conviction for welfare fraud, arguing that the Belknap Superior Court erred by denying the defendant’s motion to dismiss a challenge to the sufficiency of the evidence and his request to give an accomplice liability jury instruction.

Boisvert lived with Carrie Gray, the mother of his two children, but late in 2010 his name was removed from the lease. On Dec. 31, 2010, defendant filed for public assistance, stating he was homeless and had no resources and was certified to receive benefits. Gray received medical, food stamp, and cash public assistance between December 2010 and March 2012 in an amount calculated based on a household consisting of only Gray and her children. She would not have been eligible for the same level if the defendant had disclosed that he was also living in the apartment. Defendant’s misrepresentation was discovered and he was indicted on one count of welfare fraud.

After the state presented its case at trial, Boisvert moved to dismiss the charge, arguing that the state did not present sufficient evidence that he was living with Gray during the relevant time period. The trial court denied the motion and the jury convicted the defendant, who filed this appeal.

The NH Supreme Court found that the trial court did not err by denying the defendant’s motion to dismiss, as defendant failed to establish that the evidence did not exclude all reasonable conclusions except guilt.

Defendant also argued that the trial court erred by denying his request to give an accomplice liability instruction, which would require the state to prove that Gray had the purpose to commit the crime of welfare fraud. With the instruction the court gave, the state had to prove only that defendant intended that Gray receive benefits to which she was not entitled.

The Court construed the plain language of the welfare statute, RSA 167:17-b, and concluded that the state was not required to prove that Gray also committed welfare fraud and the defendant was aware of her culpable mental state in order to obtain a conviction for the defendant for welfare fraud.

Joseph A. Foster, attorney general (Elizabeth C. Woodcock, 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 NH v. Vincent Cooper
No. 2013-0623
Sept. 22, 2015
Affirmed

  • Whether the audio recording of the victim’s 911 telephone call is admissible at trial when the victim was unavailable to testify at trial
  • Whether the admissibility of the recording violated the defendant’s constitutional right to confront witnesses against him

Defendant Vincent Cooper appeals his conviction for armed robbery and conspiracy to commit armed robbery in the Strafford County Superior Court, arguing that the trial court erred by allowing the state to play an audio recording of a 911 telephone call at trial, and by allowing the state, in closing argument, to comment on a fact not in evidence and to misstate the burden of proof.

At trial, the state was allowed to introduce into evidence a recording of the 911 call made by the robbery victim. Defendant objected on the grounds of hearsay and argued that because the victim was not available to testify at trial, admission of his statements would violate defendant’s constitutional right to confront the witnesses against him. The trial court ruled that the recording and the statements were admissible as “excited utterances” and that defendant’s right to confront witnesses was not violated by the admission of the 911 recording.

The NH Supreme Court did not decide that the admission of the 911 recording was in error but determined that even if it was done in error, it was harmless error. A violation of the Federal Confrontation Clause is subject to harmless-error analysis, Hernandez (2009). To determine if the erroneous admission of evidence is harmless, the state must prove beyond a reasonable doubt that the verdict was not affected by the admission. In this case, the Supreme Court ruled that the other evidence of the defendant’s guilt was overwhelming.

Joseph A. Foster, attorney general (Lisa L. Wolford, 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.


State of NH v. Shawn Gilley
No. 2014-0378
Sept. 22, 2015
Affirmed

  • Whether a house is still a dwelling under the burglary statute when it is vacant and listed for sale

Shawn Gilley appeals an order of the Rockingham Superior Court denying his pre-trial motion to dismiss a Class A felony indictment for burglary. Gilley was convicted on one count of Class A felony burglary. The burglary statute elevates the offense from a Class B felony to a Class A felony when it is “perpetrated in the dwelling of another at night.” RSA 635:1, II.

Defendant argued that the house he burglarized had ceased to be the “dwelling of another” because its resident had moved out and listed the house for sale. After a de novo review, the NH Supreme Court affirmed the trial court’s order holding that a house does not lose its character as a dwelling when it is left vacant and listed for sale.

Because “dwelling of another” is not defined in the burglary statute, the Supreme Court looked to common usage and found that the definitions it looked to for guidance did not require a current occupant or an occupant that has an intent to return. This finding is consistent with the Supreme Court’s holding in State v. Timbury (1974) where a house was also vacant and listed for sale. After review of some cases from other jurisdictions, the Court held that a structure does not lose its character as a dwelling simply because it is left vacant for a time.

Joseph A. Foster, attorney general (Stacey R. Kaelin, assistant attorney general, on the brief and orally), for the State. Sarah E. Newhall, assistant appellate defender, of Concord, (on the brief and orally), for the Defendant.


Divorce Law

In the Matter of Diana Wolters and John Wolters
Nos. 2013-0411 and 2014-0503
Sept. 15, 2015
Affirmed in part; Vacated in part, Remanded

  • Whether the court should reduce the value of properties subject to equitable distribution in a divorce proceeding to account for estimated taxes that would be due by the parties in the event of a sale or transfer of the properties when that sale or transfer is neither required by the trial court’s order, nor certain to occur within a short time after the divorce decree

Petitioner, Diana Wolters, and the respondent, John Wolters, appeal orders of the 7th Circuit Court – Rochester Family Division in their divorce proceeding. Petitioner argues that the trial judge erred by not recusing herself because an attorney from the same law firm as the attorney representing the petitioner had signed a document on behalf of the judge’s former spouse in the judge’s separation action.

Petitioner also argues that the trial judge erred by considering tax consequences when determining the value of the parties’ property. Respondent argues that the trial judge erred by denying his motion to dismiss petitioner’s motion to correct property distribution and by awarding a certain percentage of eminent domain litigation proceeds to the petitioner.

The trial judge denied petitioner’s motion to recuse. Upon review of the record, the NH Supreme Court found that the attorney merely signed as a consultant for the judge’s former spouse on the uncontested final decree for separation and that there was no evidence that the attorney participated in the judge’s separation proceedings or had any communication with the judge in that matter. The petitioner did not cite any facts, nor did the Court find any in the record, that suggest that the judge was personally biased against the petitioner or her attorney. The Court concluded that no reasonable person would question the judge’s partiality in this case and affirmed the decision below.

Upon review and consideration of petitioner’s next argument that the trial court erred by reducing the value of some of the parties’ properties to account for potential taxes that would result from a sale or transfer of the properties, the Court, relying on its holding in Telgener (2002), vacated the trial court’s distribution order and remanded for distribution of assets consistent with its finding.

Because the sale or transfer of the properties at issue was neither required by the trial court’s order, nor certain to occur within a short time after the divorce decree, the trial court erred to the extent that it reduced the value of those properties to account for estimated taxes that would be due by the parties in the event of a sale or transfer of the properties.

Sulloway & Hollis of Concord (Patrick J. Sheehan on the brief and orally), for the Petitioner. Primmer Piper Eggleston & Cramer of Manchester (Doreen F. Connor on the brief and orally), for the Respondent.


Renato J. Maldini v. Helen G. Maldini
No. 2014-0417
Sept. 22, 2015
Vacated and remanded with instructions to dismiss for lack of jurisdiction

  • Whether the Superior Court is the proper forum for addressing issues arising from a side agreement between the parties that concerned marital property

Plaintiff Renato Maldini appeals an order of the Rockingham County Superior Court granting summary judgment to the defendant, Helen Maldini, on the plaintiff’s action to enforce the divorced couple’s contract regarding the allocation of joint personal income tax liability.

The parties were married in 1985, and the defendant filed for divorce in the family division in 2007. During their divorce mediation, the parties recognized that tax liabilities might result from returns they jointly filed while married and therefore entered into a “side agreement” in 2008 that stated that the parties shall be equally responsible for personal tax liabilities for joint personal tax returns except that Helen shall not be responsible should liability be the result of the audit of tax returns filed by Renato after January 1, 2008, in which event Renato shall be responsible for all such taxes, penalties, and interest. The family division was not notified of this side agreement and therefore the family division court did not consider the agreement in dividing the marital estate.

After the divorce, Renato was audited and found to have a delinquent federal tax obligation in excess of $900,000. He pled guilty to multiple counts of federal tax evasion and after serving his criminal sentence, Renato filed a breach of contract action in superior court seeking to enforce the parties’ side agreement and collect Helen’s share of the parties’ joint tax liability. Helen moved for summary judgment arguing that the plain language of the agreement made the plaintiff responsible for the entire tax debt. The superior court granted Helen’s motion for summary judgment.

The Court analyzed the parameters of the family division’s jurisdiction, stating that the issue of subject matter jurisdiction may be raised at any time in the proceedings because it cannot be conferred where it does not already exist.

Given that the side agreement at issue concerned marital property over which the family division has exclusive jurisdiction, the family court remains the proper forum for addressing any issues arising from the side agreement. Because the superior court had no jurisdiction over the side agreement, the Court vacated the superior court’s judgment and remanded to that court for the entry of an order of dismissal for lack of jurisdiction.

Shaines & McEachern of Portsmouth (Robert A. Shaines and Jacob J.B. Marvelley on the brief, and Jacob J.B. Marvelly orally), for the Plaintiff. McLane, Graf, Raulerson & Middleton of Manchester (Peter D. Anderson and Amy M. Goodridge on the brief, and Peter D. Anderson orally), for the Defendant.


Education Law

Danielle (Graveline) Gauthier m/n/f Morgan Graveline v. Manchester School District SAU #37
No. 2014-0496
Sept. 4, 2015
Affirmed

  • Whether there is a common law duty for a school to report alleged bullying to a parent in accordance with the school’s anti-bullying policy

Plaintiff Danielle Gauthier, as mother and next friend of Morgan Graveline, appeals an order of the Hillsborough - Northern Judicial District Superior Court granting summary judgment to the defendant, Manchester School District (MSD).

In this case, Morgan was punched in the face by another student, AM, on Feb. 4, 2011. On Feb. 13 and 14, Morgan received threatening Facebook messages from another student, AA. The school principal learned about these messages on the morning of Feb. 15 and went to the cafeteria at lunchtime that day, where both AA and Morgan were present, and told AA to see him after lunch.

After the principal left the cafeteria, a fight broke out and Morgan was hit several times and her head, face, and mouth were injured. The principal met with plaintiff in the emergency room and told her about the Feb. 4 incident and the threatening messages for the first time.

MSD had a written anti-bullying policy in place as required by RSA 193-F:4, II (Supp. 2014) that provides that the principal or other administrative designee shall report to the parents of a bullying victim and to the parents of the bully within 48 hours of receiving the report. RSA 193-F also clearly states that there is no private right of action permitted (RSA 193-F:9) and that a school administrative unit employee, inter alia, shall be immune from civil liability for good faith conduct pertaining to the reporting, investigation, findings and response under the Pupil Safety and Violence Prevention chapter, Chapter 193-F. See RSA 193-F:7.

Plaintiff filed suit to recover for Morgan’s injuries on the grounds that the principal had a common law duty to protect and supervise Morgan and that he breached this duty by failing to comply with the school’s anti-bullying policy. Plaintiff argued that this is a common law claim cognizable under Marquay v. Eno (1995), and not barred by RSA Chapter 193-F.

The NH Supreme Court held that despite the plaintiff’s invocation of Marquay and her mention of a “negligent breach of the duty to protect and supervise,” the only duty she claims was breached is the duty to report in accordance with MSD’s anti-bullying policy.

The Court declined to extend Marquay to create a duty to report bullying under the facts alleged in this case, relying on the legislature’s expressed intent that a breach of RSA Chapter 193-F not give rise to liability and that recognition of a common law right of action under the facts alleged here would undermine this legislative intent. Finding no common-law duty in the instant case, the Court affirmed the grant of summary judgment for the defendant.

Backus, Meyer & Branch of Manchester (B.J. Branch on the brief and orally), for the Plaintiff. McDonough, O’Shaughnessy, Whaland & Meager of Manchester (Robert J. Meagher on the brief and orally), for the Defendant.


Sovereign Immunity

Scott McCarthy v. Manchester Police Department
No. 2014-0773
Sept. 22, 2015
Affirmed

  • Whether state actors are protected by sovereign immunity against all claims for defamation arising out of the conduct of state actors, provided that they were acting within the scope of their official duties and with a reasonable belief that their conduct was lawful

Plaintiff Scott McCarthy appeals an order of the Hillsborough-Northern Judicial District Superior Court granting a motion to dismiss his defamation action against the defendants, Manchester Police Department (MPD) and MPD Sgt. Craig Rousseau, on the grounds that municipal immunity bars his claim.

MPD investigated a report of a man exposing his genitalia in a car in which there was a young female passenger. MPD officers subsequently identified that man as the plaintiff but were unable to identify the female passenger. In an effort to identify her, Sgt. Rousseau posted an entry on the MPD blog describing the incident and identifying plaintiff by name and age as the man who “was in fact exposing himself in the vehicle.” The passenger was never identified and the complainant failed to come to court on the day of trial, so the state entered a nolle prosequi.

Plaintiff brought this action against defendants alleging that the MPD blog entry stating that plaintiff was “in fact” guilty of the crime was defamatory. Defendants moved to dismiss arguing that they were immune from suits that were not authorized by RSA chapter 507-B because “[n]o governmental unit shall be held liable in any action to recover for bodily injury, personal injury or property damage except as provided by this chapter or… by other statute.”

The trial court found that the defendants would be entitled to immunity under both the municipal and sovereign immunity statutes, unless Sgt. Rousseau acted beyond the scope of his official duties or did not reasonably believe that his conduct was lawful. Accordingly, the trial court granted defendants’ motion to dismiss.

On appeal, the NH Supreme Court analyzed both the municipal and sovereign immunity statutes in reaching its decision to affirm. The Court first found that the plaintiff’s defamation claim was barred by RSA 507-B:5, the municipal immunity statute, because the claim at issue had no nexus with the defendants’ ownership, occupation, maintenance, or operation of motor vehicles or premises.

The Court next concluded that the sovereign immunity statute, RSA 541-B:19, I(d), granted sovereign immunity against all claims for defamation arising out of the conduct of state actors, provided that they were acting within the scope of their official duties and with a reasonable belief that their conduct was lawful. Because plaintiff conceded that Sgt. Rousseau was acting within the scope of his office and did not challenge that Sgt. Rousseau was acting in good faith, the Court affirmed the trail court’s decision to grant MPD’s motion to dismiss.

Backus, Meyer & Branch of Manchester (B.J. Branch on the brief and orally), for the Plaintiff. McDonough, O’Shaughnessy, Whaland & Meagher of Manchester (Robert J. Meagher on the brief and orally), for the Defendants.


Zoning Law

Merriam Farm, Inc. v. Town of Surry
No. 2014-0702
Sept. 22, 2015
Reversed and remanded

  • Whether claim preclusion bars the petitioner’s variance application to respondent after respondent had already denied petitioner’s building permit application

Petitioner, Merriam Farm Inc., appeals a decision of the Cheshire Superior Court dismissing its appeal of a decision of the Town of Surry’s Zoning Board of Adjustment (ZBA), on the basis that the appeal was barred by claim preclusion.

Petitioner owns an unimproved parcel of land in Town with frontage on a Class VI road, and about 1,000 feet from a Class V road. Under the Town’s zoning ordinance, petitioner must establish that the property has at least 200 feet of frontage on a Class V or better road in order to build on that property.

In 2009, petitioner applied to the town for a building permit to construct a single-family home on the property. That application, and a subsequent appeal, were both denied because the property lacked the required frontage on a Class V or better road. Subsequent appeals by petitioner to the trial court and to the New Hampshire Supreme Court were also unsuccessful.

Petitioner next applied to the ZBA for a variance from the frontage requirement in order to build the residence. The ZBA denied the application, and the petitioner appealed to the trial court, where the town asserted that petitioner’s application for a variance was barred by the doctrines of claim preclusion and preemption.

The trial court concluded that petitioner’s previously unsuccessful application for a building permit precluded the ZBA from considering the petitioner’s variance application.

Upon de novo review, the NH Supreme Court applied the three-part test set out in In re Estate of Bergquist (2014) to determine whether the doctrine of claim preclusion, otherwise known as res judicata, applies to this situation.

The parties agreed that two of the three elements of the test were met, i.e., that the parties are the same and that the first action ended with a final judgment on the merits. They disputed only whether the same cause of action was before the court in both instances.

The Court found that in petitioner’s first appeal on the denial of the building permit, petitioner was only required to demonstrate that enforcement of provisions under the building permit statute would cause practical difficulty or unnecessary hardship and that petitioner was not required to demonstrate at that time that it met all of the statutory requirements for the variance it ultimately sought in 2013. The court thus concluded that the denial of the petitioner’s application for a building permit gave rise to a cause of action different from the denial of its variance application and, therefore, res judicata did not preclude the petitioner’s variance application.

Bernstein, Shur, Sawyer & Nelson of Manchester (Roy W. Tilsley and Michael A. Klass on the brief, and Mr. Tilsley orally), for the Petitioner. Bradley & Faulkner of Keene (Gary J. Kinyon on the brief and orally), for the Respondent.


Town of Bartlett v. Edward C. Furlong, III d/b/a Lil’ Man Snowmobile Rentals
No. 2014-0063
Sept. 22, 2015
Affirmed

  • Whether RSA 676:17, I effective Sept. 11, 2009, is a remedial statute, which can be applied retroactively to a case filed, but not decided, prior to Sept. 11, 2009

Defendant Edward Furlong appeals an order of the Third Circuit Court – Conway District Division awarding judgment in favor of the plaintiff, the town of Bartlett, in a zoning enforcement action.

Furlong owns property in Bartlett on which he began renovation in fall 2008. The town notified defendant that he needed a building permit for the renovations and was given a cease and desist notice in November 2008. Defendant never perfected his applications for a building permit and completed the renovations without a building permit. On Dec. 12, 2008, the town subsequently filed a land use complaint in Third Circuit Court – Conway District Division, which advised the defendant that he could be fined $275 for the first day and $550 for every day thereafter that the violation continued.

The trial court found that defendant’s violation of the zoning ordinance has gone on for a total of 1,132 days, from Dec. 12, 2008 when the land use citation was filed, to Jan. 18, 2012, which was the date of the final hearing. The trial court credited the defendant with 506 days for the period while the interim appeal was pending, leaving 626 days during which he was in violation. Pursuant to RSA 676:17, the trial court imposed a fine of $275 for the first day and 625 fines of $550 for each subsequent day for a total fine of $344,025.

Defendant argues on appeal that RSA 676:17 as was in effect on Dec. 12, 2008, precluded the district court from imposing a fine greater than $25,000. RSA 676:17, prior to Sept. 11, 2009, did not provide that each day of violation constitutes a separate offense. The legislature amended the statute by adding language stating that “[e]ach day that a violation continues shall be a separate offense.” RSA 676:17, I (eff. Sept. 11, 2009). The issue before the Court is whether the statutory amendment should be applied to this case because while the land use citation was filed on Dec. 12, 2008, judgment was not entered by the trial court until after the Sept. 11, 2009 amendment.

Statutes are presumptively intended to operate prospectively, but when the legislature is silent as to whether a statute should apply prospectively or retrospectively, as is the case here, the court’s interpretation turns on whether the parties’ substantive or procedural rights are affected by the statute. If application of the new law adversely affects an individual’s substantive rights, it may not be applied retroactively, whereas a statute that is remedial or procedural in nature may be applied to cases pending at the time of enactment.

A remedial statute is one designed to remedy a defect in existing laws or cure a mischief. A substantive right is a vested right. “[T]o be vested, a right must be more than a mere expectation based on an anticipation of the continuance of existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand, or a legal exemption from the demand of another,” in the Matter of Goldman & Elliott (2005).

The bill to amend RSA 676:17, I, was introduced in the House with a curative purpose to “fix[] a problem resulting from a recent supreme court interpretation of zoning statutes.” Violations of municipal land use laws may be prosecuted in either district or superior court but a continuing violation could exceed the $25,000 jurisdictional limit of the district court if treated as a single offense. Making each day of violation a separate offense allows municipalities the option of prosecuting all zoning violations in district court where the procedures are more simple and faster.

Though the NH Supreme Court held that the legislature’s intent was remedial, it also considered the amendment’s effect on the parties’ rights and determined that the amendment did not change the defendant’s substantive rights as he was always subject to the same penalties for the violations he committed. The amendment allows for adjudication in an additional forum. Prior to the amendment, the town could have brought the exact same claim and been awarded the exact same judgment in superior court. Because the district court had never entered a judgment on the claim before the statute was amended, the Town could have transferred the matter to superior court.

Finding that the amendment to the statute was remedial, the Court held that the trial court did not exceed its authority when it imposed the penalty of $344,025 on the Defendant.

Donahue, Tucker & Ciandella of Exeter (Christopher T. Hilson on the brief) for Plaintiff. Edward C. Furlong, III, pro se, by brief.

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