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Bar News - March 16, 2016


Supreme Court At-a-Glance

February 2016

Administrative Law

Appeal of Town of Salem & a.
No. 2014-0650
Town of Salem & a. v. Local Government Center Inc. & a.
No. 2014-0736
Feb. 18, 2016
Affirmed in part, vacated in part, and remanded

  • Whether the secretary of state has exclusive authority to enforce RSA chapter 5-B concerning pooled risk management programs
  • Whether the presiding officer of the New Hampshire Bureau of Securities erred in concluding he lacked authority to order payment to former members of a pooled risk management program as either restitution or disgorgement

This is a consolidated appeal of a civil and an administrative case stemming from a Bureau of Securities Regulation order requiring certain pooled risk management programs and managers (collectively, defendants) to return excess funds to participating political subdivisions pursuant to RSA 5-B:5,I(c). The order ultimately provided distribution of funds to only those political subdivisions who were participants in the programs at the time of the order.

In the underlying administrative case, several New Hampshire towns who had participated in the defendants’ programs, but who were not participants at the time of the order (towns), moved to be included in the distribution of funds. The bureau’s presiding officer denied their motion, ostensibly on the grounds that he lacked authority to penalize a violation of RSA 5-B:5, I(c) by ordering payment to former members of a pooled risk management program as either restitution or disgorgement. In the underlying civil case, the towns sued the defendants in NH Superior Court claiming common law contract rights to the excess funds. The superior court dismissed the claim because, among other things, 5-B:4-a abrogated the towns’ common law claims. The towns appealed both decisions.

The NH Supreme Court first upheld the superior court’s dismissal of the towns’ common law claims to the excess funds, finding that the plain language of RSA 5-B:4-a grants the secretary of state exclusive authority and jurisdiction to enforce RSA chapter 5-B. The Court concluded that the statutory language clearly expresses the intention to supplant any common law claim within that realm and provides instead an administrative enforcement mechanism. The Court then held that the towns’ common law contracts claims for the return of surplus funds was inextricably entwined with RSA chapter 5-B and fell within the secretary of state’s exclusive jurisdiction thereunder. To hold otherwise, according to the Court, would create an end-run around the legislative grant of exclusive enforcement jurisdiction by incorporating statutory provisions within their contracts and then privately enforcing such provisions through breach of contract actions in court.

The Court then found that the bureau’s presiding officer committed an error of law “to the extent the presiding officer concluded that he lacked the authority to penalize a violation of RSA 5-B:5, I(c) by ordering payment to former members of a pooled risk management program as either restitution or disgorgement.” The Court vacated the bureau’s order, explaining that the provision the defendants violated, RSA 5-B:5, I(c), does not circumscribe the remedy, and remanded for further proceedings on what, if any, remedy should be ordered in this case.

Michael D. Ramsdell, Ramsdell Law Firm, for respondents Health Trust, Local Government Center Health Trust, and LGC-HT; and for the defendants. Richard J. Lehmann, Douglas, Leonard & Garvey, for the petitioners, towns of Salem, Temple, Auburn, Bennington, Meredith, Northfield, Peterborough, and Plainfield. James W. Kennedy, city solicitor, and Danielle L. Pacik, deputy city solicitor, City Solicitor’s Office of Concord, for plaintiff City of Concord.


Criminal Law

State v. Tyler Boyer
No. 2014-0725
Feb. 12, 2016
Reversed and remanded

  • Whether the defendant’s presence in the apartment with his girlfriend in violation of defendant’s bail order, violated the defendant’s expectation of privacy such that the defendant lacked standing to challenge a search

On Feb. 5, 2014, the defendant was arrested for committing acts of domestic violence against his girlfriend, AN. The defendant was released on personal recognizance bail subject to specific conditions. The bail order prohibited him from having contact with AN, coming within 100 feet of her, and from interfering with her at her residence in Ashland where the defendant had lived with her. The bail order also required that the defendant live in Ellsworth.

Three days after the defendant was released, officers from the Ashland Police Department observed the defendant’s truck parked near the apartment in Ashland. Without obtaining a warrant, the officers knocked on the door, and AN gave them permission to enter the apartment. The officers found the defendant inside the apartment, and arrested him for violating the bail order.

The defendant filed a motion to suppress the officers’ search for him in the apartment as a violation of the state and federal constitutions. The state asserted that because the bail order prohibited the defendant from contacting AN, her presence in the apartment eliminated any legitimate expectation of privacy that the defendant might have had at the time of the search, and therefore the defendant lacked standing to challenge the search. The defendant countered that he had standing because he had a privacy interest in keeping the police out of his residence, even if he was temporarily forbidden to return home.

The trial court ruled, among other things, that the defendant had standing to challenge the search because the warrantless search occurred in the defendant’s home.

The NH Supreme Court reversed the trial court’s determination on standing, concluding that the defendant did not have standing to challenge the search because he was present in the apartment at the time of the search in violation of the bail order, and under these circumstances, any subjective expectation that the defendant may have had in the apartment is not one that society is prepared to recognize as reasonable.

According to the Court, a defendant may have standing under the state and federal constitutions if he has a legitimate expectation of privacy in the place searched or the item seized. To claim standing, the defendant must establish both: (1) a subjective expectation of privacy in the place searched or the item seized; and (2) that his subjective expectation is legitimate because it is “one that society is prepared to recognize as reasonable.” After analyzing case law from other jurisdictions, the Court found that the defendant did not have a reasonable expectation of privacy in the apartment because he was under a specific court order not to be there, and the Court was not prepared to find that society would legitimize his unlawful presence there by recognizing a privacy right.

The bail order eliminated any reasonable expectation of privacy that the defendant might have had in the apartment at the time of the search, and it also removed, at least temporarily, any property interest that might have allowed him to challenge the search. And, given society’s interest in preventing and deterring domestic violence and providing effective police protection, the Court would not, under these circumstances, recognize as reasonable the defendant’s privacy interest in the apartment.

The Court did note, however, that if the search had been for evidence of a crime unrelated to the defendant’s violation of the bail order, the defendant may have had a legitimate privacy interest in the items seized notwithstanding the terms of the bail order.

Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general), for the state. Christopher M. Johnson, chief appellate defender, for the defendant.


State v. Christina Thomas
No. 2013-0489 Feb. 23, 2016
Affirmed

  • Whether the trial court erred in admitting at trial evidence of defendant’s uncharged bad acts and other prejudicial evidence

The defendant was indicted on one count of first-degree assault for knowingly causing serious bodily injury to a person under 13 years of age. The indictment alleged that the defendant “did knowingly cause serious bodily injury to DA by failing to provide proper nutrition to DA, causing ‘failure to thrive’ to DA, and did owe a duty of care to DA as she was DA’s acting primary caretaker.”

Prior to trial, the state successfully moved to admit evidence of uncharged bad acts the defendant committed against DA when DA resided with the defendant. The evidence of the defendant’s uncharged bad acts is described in more than five pages of the Court’s opinion, and includes numerous instances of abuse and neglect of DA over the course of eight years.

A jury convicted the defendant of first degree assault against DA, and the defendant appealed. On appeal, the defendant argued, among other things, that the trial court erred by admitting evidence of the uncharged bad acts against DA because: (1) the acts were not “inextricably intertwined” with the charged crime; (2) the acts against DA were not relevant to show her intent or motive; and (3) the danger of unfair prejudice substantially outweighed the probative value of the acts.

The Court affirmed the trial court’s admission of defendant’s uncharged bad acts. The Court first concluded that it was unnecessary to determine whether the bad acts at issue were “inextricably intertwined” with the charged crime because the trial court treated the acts as “extrinsic,” which is subject to a different analysis. Extrinsic evidence is subject to the three-part Rule 404(b) analysis under the New Hampshire Rules of Evidence, which the Court undertook after identifying that the defendant’s second and third grounds for appeal were based on the first and third prongs of Rule 404(b), respectively.

With respect to the defendant’s second argument, the Court agreed with the trial court’s determination that the defendant’s other bad acts were relevant to the defendant’s mental state, including whether she acted “knowingly.” The other bad acts demonstrate the defendant’s attitude and behavior toward DA, which, according to the Court, the jury could find was more consistent with knowingly starving DA than doing so negligently or mistakenly.

The Court rejected the defendant’s unpreserved argument that under Rule 404(b), evidence of other bad acts is relevant to prove a defendant’s intent only if the defendant is charged with acting “purposefully.” The Court explained that for purposes of Rule 404(b), “intent” can entail any mental state that the proponent of the evidence may seek to prove, and therefore evidence of other bad acts can be relevant to prove any mental state with which a defendant is charged.

The Court similarly agreed with the trial court’s ruling that the prejudicial value of the evidence of defendant’s other bad acts did not substantially outweigh the probative value of the evidence under Rule 404(b). The Court found that the evidence of the defendant’s other bad acts was highly relevant to the defendant’s mental state, and therefore probative. The Court noted that the defendant’s intent was contested at trial, and when intent is in serious dispute, the trial court is justified in assigning a high probative value to other bad acts evidence that tends to prove the mens rea of the charged act. The other bad acts evidence was further probative on the issue of the defendant’s role as the primary caretaker of DA. Although the evidence of the defendant’s prior bad acts was prejudicial, the Court concluded that the trial court did not unsustainably exercise its discretion in finding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice to the defendant (Court’s emphasis).

The defendant also argued that the trial court erred by failing to strike other evidence at trial that she did not challenge at the time of admission. The Court reviewed the admission of this evidence for plain error and explained that when a party does not object to the admission of evidence, it is almost impossible to conclude that a trial court committed error. Further, according to the Court, the defendant failed to demonstrate plain error because the evidence of her guilt was overwhelming, and the admission of the additional evidence would not have affected the outcome of the trial.

Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney general), for the state. Thomas Barnard, senior assistant appellate defender, for the defendant.


Employment Law

US Equal Employment Opportunity Commission & a. v. Fred Fuller Oil Company & a.
No. 2015-0258
Feb. 23, 2016

  • Whether sections 354-A:2 and 354-A:7 of the New Hampshire Revised Statutes impose individual employee liability for aiding and abetting discrimination in the workplace
  • Whether section 354-A:19 of the New Hampshire Revised Statutes imposes individual employee liability for retaliation in the workplace

This case stems from a United States District Court for the District of New Hampshire lawsuit in which two women sued their employer and an individual co-employee for sexual harassment and retaliation. Pursuant to New Hampshire Supreme Court Rule 34, the federal court certified to the New Hampshire Supreme Court two questions for determination of whether certain New Hampshire statutes impose individual employee liability for unlawful acts of discrimination in the workplace.

The Court began by addressing the first question, which was whether RSA 354-A:2 and RSA 354-A:7 impose liability upon individual employees for aiding and abetting unlawful discrimination in the workplace. The Court found that these statutes did not specify who may be liable for such acts, and so interpreted them in conjunction with RSA 354-A:21, I(a), which permits an aggrieved party to file a discrimination complaint against an individual person, among other types of parties. Congruently, according to the Court, a person may file a complaint against an individual person for aiding and abetting unlawful discrimination in the workplace, thereby subjecting an individual employee to liability for such a claim.

The Court rejected the defendant’s argument that the legislature intended to exempt individual employees from liability for discrimination claims because the legislature exempted employers with fewer than six employees from liability for unlawful discriminatory practices under RSA 354-A:2, VII. The Court explained that the defendant’s interpretation would absolve an individual employee from any liability for aiding and abetting his employer to commit an unlawful act of discrimination, which is specifically defined as an unlawful discriminatory practice under RSA 354-A:2, XV(d). The defendant’s argument, therefore, was inconsistent with the stated intent of RSA chapter 354-A “to eliminate and prevent discrimination in employment.” The Court did note, however, that because the legislature exempted from liability those employers with fewer than six employees, an individual employee of an employer with fewer than six employees could not be held liable for unlawful discriminatory acts.

The Court also answered in the affirmative the second question, which asked whether RSA 354-A:19 imposes individual employee liability for retaliation in the workplace. In so answering, the Court looked to the language of the statute, which provides that it is unlawful for any “person” to retaliate against a person who has filed a discrimination complaint. The definition of “person” under the statutory scheme includes “one or more individuals,” and, as such, the Court concluded that any person who retaliates against another person in the workplace relative to unlawful discriminatory acts is individually liable under RSA 354-A:19 for an unlawful discriminatory practice.

The Court explained that, as with RSA 354-A:2 and RSA 354-A:7, individual liability under RSA 354-A:19 applies to only those individuals who are employed by employers with six or more employees. The Court left open the question of whether individuals who are not employed by the plaintiff’s employer may be liable for retaliation under RSA 354-A:19.

Leslie H. Johnson (on the brief and orally), of Law Office of Leslie H. Johnson, and Ellen Purcell (on the brief), of Purcell Law Office, for plaintiffs. Martha Van Oot (on the brief and orally) and K. Joshua Scott (on the brief), of Jackson Lewis, for defendant. Nancy Richards-Stower, of Law Offices of Nancy Richards-Stower, and Jon Meyer, of Backus, Meyer and Branch, for the New Hampshire Chapter of the National Employment Lawyers Association as amicus curiae.


Municipal Law

Olson, et al. v. Town of Grafton
No. 2015-0264
Feb, 12, 2016 Affirmed

  • Whether the Town’s inclusion of the phrase “the Selectmen do no recommend this article” on a citizen’s proposed warrant articles violates RSA 39:3 and certain provisions of RSA 32:5

The plaintiffs petitioned to include 20 warrant articles on the Town of Grafton’s annual ballot scheduled for March 2015. Upon reviewing the plaintiff’s articles, the town’s board of selectmen voted to include the phrase, “The Selectmen do not recommend this article” relative to each of the articles. The plaintiffs filed a petition with the NH Superior Court for declaratory and injunctive relief to remove the phrase from the ballot and prohibit prospectively the selectmen from inserting on the ballot its recommendations on all warrant articles unrelated to appropriations. The superior court denied the plaintiffs’ petition, and the NH Supreme Court affirmed.

The Court first found that the phrase at issue did not constitute a “textual change” to the articles themselves, and was therefore not a violation of RSA 39:3, which allows the selectmen to insert in their warrant “only such minor textual changes as may be required” (2000). The Court then examined RSA 32:5, V, which mandates that a board of selectmen include its recommendations on warrant articles involving appropriations, and RSA 32:5, V-a, which authorizes selectmen, among other things, to record a tally for all votes relative to budget items or any warrant articles. After a comprehensive review of the legislative history of RSA 32:5, V-a, the Court found that the two statutes were incongruent and concluded that it would be illogical for the legislature to empower selectmen to include vote tallies on warrant articles without also empowering it to inform the electorate of the recommendation reflected by its vote. Accordingly, the Court held that RSA 32:5, V-a authorizes selectmen to include both their vote tally and recommendation in the town warrant next to the pertinent warrant article.

Brandon D. Ross of B.D. Ross Law Office for plaintiff Jeremy Olson. Steven M. Whitley on the brief, and Laura Spector-Morgan orally, of Mitchell Municipal Group for the defendant.


Real Estate

Kelly Sanborn, Trustee of the 428 Lafayette, LLC Realty Trust & a. v. 428 Lafeyette, LLC & a., Andrew Cotrupi v. 428 Lafayette, LLC & a.
No. 2015-0143
Feb. 18, 2016
Affirmed in part, vacated in part, and remanded

  • Whether a condominium association incorporated as a nonprofit corporation is governed by RSA chapter 292, Voluntary Corporations and Associations, rather than RSA chapter 356-B, the Condominium Act
  • Whether an owner of a condominium unit has the right to use certain commercial parking spaces pursuant to a deed and a condominium declaration

This appeal arises out of two consolidated actions concerning the parties’ ownership rights in condominium units at Village Square of Hampton Condominium, which is incorporated as a nonprofit corporation. The plaintiffs are individual owners of several of the condominium units who brought suit in NH Superior Court against two specific condominium owners for various forms of injunctive relief relative to condominium governance issues. The two defendants owned a combined nine of the 14 units of the condominium, and possessed a majority of the voting rights in the governing association, which, among other things, the plaintiffs sought to remedy.

The superior court granted some of plaintiffs’ requested injunctive relief concerning the association’s governance issues. The superior court ruled that the association was governed as a nonprofit corporation pursuant to the Voluntary Corporations Act, rather than a condominium under the Condominium Act “for the relatively straightforward reason that it chose” to incorporate.

The superior court then ordered the unit owners to elect five directors and that each member shall have one vote, as opposed to one vote per unit. In a related case, the superior court ruled that plaintiff Cotrupi had the right to exclusive use of six commercial parking spaces and to shared use of the remaining commercial parking spaces on the condominium property. The defendants appealed both superior court orders, which the Court consolidated.

The Court reviewed the Voluntary Corporations Act and the Condominium Act and found that neither contained language that makes it the exclusive act governing condominium associations that incorporate. Because neither Act contains exclusivity language, the Court held that condominium associations that voluntarily incorporate are subject to both acts, including on matters of governance. The Court further held that the bylaws of an incorporated condominium association cannot negate the applicability of the Voluntary Corporations Act.

The Court concluded that the superior court erred in ruling that the association was governed solely by the Voluntary Corporations Act and vacated its governance-related orders based on that premise. The Court remanded the case for consideration of the governance issues in light of its holding that condominium associations that incorporate are subject to both the Condominium Act and the Voluntary Corporations Act.

The Court then examined plaintiff Cotrupi’s deed for one of the commercial units of the condominium, along with the declaration that created the condominium, to determine Cotrupi’s right to the commercial parking spaces on the condominium property. The Court found that Cotrupi’s deed clearly and unambiguously granted him the exclusive right to six commercial parking spaces, as well as all the benefits stated in the declaration.

The declaration provided that commercial unit owners had the right to park in the commercial spaces that were not otherwise exclusively reserved. Therefore, according to the Court, in addition to being granted by deed the exclusive right to six commercial parking spaces, Cotrupi retained the right under the declaration to shared use of the remaining commercial parking spaces.

In so holding, the Court rejected the defendants’ argument that the Court should consider extrinsic evidence because the deed references an amended site plan that was never presented to the trial court or recorded with the registry of deeds. The Court explained that because the language of the deed is unambiguous, the Court will not resort to extrinsic evidence. Accordingly, the Court affirmed the trial court’s ruling that Cotrupi was entitled to the exclusive use of six commercial parking spaces and shared use of the remaining commercial parking spaces.

Douglas W. Macdonald, Keane & Macdonald, for the plaintiffs. Paul McEachern and Jacob Marvelley on the brief, and Mr. McEachern orally, Shaines & McEachern, for the defendants. Andrew Cotrupi, for himself.


Workers Compensation

Appeal of Raymond Cover
No. 2014-0583
Feb. 26, 2016
Vacated and remanded

  • Whether an agency rule providing that an employer is not obligated to reinstate part-time employees after a work-related injury conflicts with a statute governing the same obligation, and is therefore invalid

The petitioner was a part-time employee of the New Hampshire Liquor Commission who sustained a work-related injury. The commission sent workers’ compensation forms to the petitioner and warned him that he faced termination if he did not provide medical documentation by a certain date to justify his absence from work. The petitioner gave the forms to his physician, who submitted them to the commission three days after the deadline. The commission subsequently terminated the petitioner’s employment.

The petitioner requested a hearing with the New Hampshire Department of Labor requesting reinstatement of his employment, among other things. The hearing officer denied his reinstatement, stating that part-time employees are ineligible for reinstatement pursuant to NH Labor Rule (Lab) 504.05(b)(3). The petitioner appealed this determination to the New Hampshire Compensation Appeals Board, arguing that Lab 504.05(b)(3) is invalid because it conflicts with RSA 281-A:25-a, under which “employee[s]” are eligible for reinstatement. The board affirmed the hearing officer’s decision, which the petitioner appealed to the New Hampshire Supreme Court.

On appeal, the Court first rejected the commission’s argument that the Court lacked subject matter jurisdiction because the petitioner challenged an agency rule without conforming to the procedure provided in RSA 281-A:24. The commission contended that RSA 281-A:24 vests the right to challenge an agency rule in Merrimack County Superior Court by means of a declaratory judgment naming the agency that adopted the rule. According to the commission, this is the only jurisdiction in, and mechanism by, which the petitioner may initiate a challenge to Lab 504.05[(b)(3)]. The Court explained, however, that RSA 281-A:24 provides a permissive right to challenge an agency rule by such a declaratory judgment in Merrimack County Superior Court, but does not limit the other mechanisms by which a party may rightfully do so. A party, therefore, may challenge the validity of an agency rule in an administrative proceeding subject to the Court’s appellate review, as the petitioner did in this case.

The Court then reviewed RSA 281-A:25-a, I and found that the statute provides the right of reinstatement for “employee[s],” which is defined in the statute as “[a]ny person in the service of an employer.” RSA 281-A:25-a, II(b) further lists the types of employees who are ineligible for reinstatement, but does not include part-time employees as ineligible. The Court then concluded that, in light of the overall scheme of the statute, and the remedial purpose of the workers’ compensation law, the legislature clearly intended to extend the right of reinstatement to part-time employees. Lab 504.05(b)(3), which provides that an employer is not obligated to reinstate a part-time employee, impermissibly modifies RSA 281-A:25-a, and is therefore invalid.

Jared O’Connor of Shaheen & Gordon for the petitioner. Katherine DeForest (on the brief) and David W. Johnston (orally) of Sulloway & Hollis for the respondent.

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