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Bar News - April 20, 2016


Supreme Court At-a-Glance

By:

March 2016

Constitutional Law

Officer John Gantert v. City of Rochester & a.
No. 2015-0062
March 18, 2016
Affirmed

  • Whether the plaintiff was afforded sufficient procedural due process when he was placed on a “Laurie List”

The plaintiff, an officer with the Rochester Police Department, was terminated from his employment for submitting a Lethality Assessment Protocol (LAP) to the County Attorney that contained answers that the plaintiff knew he had no basis to believe were true. The plaintiff’s termination was recommended by an investigating lieutenant and subsequently ratified by the deputy chief, the chief, and the police commission.

The chief offered the plaintiff a meeting to discuss the chief’s intent to notify the County Attorney that the plaintiff’s actions could constitute Laurie material, but the plaintiff declined to attend on the advice of union counsel. (“Laurie” refers to State v. Laurie (1995), in which the Court granted a criminal defendant a new trial based on the prosecution’s failure to disclose information found in a police officer’s employment files and records.)

The plaintiff appealed his termination to the NH Labor Relations Board. The arbitrator found that the police department had just cause to discipline the plaintiff, but that termination was too severe because the plaintiff did not intentionally falsify the LAP and had no past disciplinary problems. The arbitrator reduced the discipline to a suspension without pay, but did not rule on the Laurie issue, which it deemed beyond its authority. After the arbitrator’s decision, the plaintiff requested that the chief and the County Attorney remove his name from the Laurie List, but both declined.

The plaintiff brought suit against the city, the police department, and the police commission claiming that he was placed on the Laurie List without proper procedural due process. On cross motions for summary judgment, the trial court ruled in favor of the defendants. On appeal, the NH Supreme Court affirmed, ruling that the plaintiff had received all the process he was due. When determining what process is due, the Court balances three factors: (1) the private interest that is affected; (2) the risk of erroneous deprivation of that interest through the procedure used and the probable value of any additional or substitute procedural safeguards; and (3) the government’s interest, including the fiscal and administrative burdens resulting from additional procedural requirements.

Regarding the first factor, the private interest affected is the plaintiff’s professional reputation, which is a significant interest that requires due process for governmental actions affecting it. Regarding the second factor, the plaintiff failed to articulate why the procedures followed by the police department were unfair, nor did he show that there was a true risk that his interest in his professional reputation would be erroneously deprived. Regarding the third factor, the Court found that the government has a great interest in placing officers on the Laurie List whose confidential personnel files may contain exculpatory information.

Balancing these interests, the Court concluded that the plaintiff had been afforded sufficient process before being placed on the Laurie List. There was an internal investigation, two layers of review within the police department, an opportunity to meet with the chief, and a hearing before the police commission. There is no need for additional process before an officer is placed on the “Laurie List.”

Because there was a basis to keep the plaintiff on the list, there was no denial of due process in handling his request to be removed from the list. The plaintiff provided answers on the LAP that he knew he had no basis to believe were true. This was enough of a reflection on his general credibility to trigger a prosecutor’s obligation to disclose this information for in camera review in a case in which the plaintiff would testify for the state.

Wilson, Bush, Durkin & Keefe, of Nashua (Charles J. Keefe on the brief and orally), for the plaintiff. Terence M. O’Rourke, city attorney, by memorandum of law and orally, for the defendants. Joseph A. Foster, attorney general (Patrick J. Queenan, assistant attorney general, on the brief and orally), for the state, as amicus curiae.


Deborah Sumner v. New Hampshire Secretary of State
No. 2015-0340
March 22, 2016
Affirmed

  • Whether the state’s ballot exemption statutes violate several provisions of the NH Constitution
  • Whether the trial court erred in rejecting, as a non-justiciable political question, the plaintiff’s claim that the process by which the legislature enacted the ballot exemption statutes violated the NH Constitution.

The plaintiff appealed an order of the trial court upholding the NH Secretary of State’s denial of her Right-to-Know request to inspect ballots cast in the town of Jaffrey during the 2012 general election. The plaintiff argued that the ballot exemption statutes (RSA 659:95, II; RSA 660:16, II; and RSA 669:33, II), which exempt ballots that have been cast from the Right-to-Know Law, violate provisions of the NH Constitution. The plaintiff also argued that the trial court erred when it rejected, as a non-justiciable political question, her claim that the process by which the legislature enacted the ballot exemption statutes violated the NH Constitution.

On appeal, the NH Supreme Court affirmed the trial court. The Court found that the ballot exemption statutes promote the state’s compelling interest in the integrity, fairness, and efficiency of elections by protecting ballots from damage or loss and preserving voter privacy. The Court also noted that state law incorporates public oversight into the vote counting process, such as by requiring votes to be counted in public and permitting candidates to inspect ballots during recounts. On balance, the state’s interest in the integrity, fairness, and efficiency of elections outweighs the public’s interest in access. Accordingly, the ballot exemption statutes are reasonable restrictions under Part 1, Article 8 (right of access).

The Court also rejected the plaintiff’s claim that the ballot exemption statutes violate Part 1, Article 11 (right to vote) because the plaintiff failed to provide any authority that the right to vote includes the right to inspect ballots. Similarly, the Court rejected the plaintiff’s claim that the ballot exemption statutes violate Part 1, Article 22 (freedom of speech) because the plaintiff failed to explain how prohibiting access to already-cast ballots infringes on freedom of speech.

Finally, the Court ruled that the plaintiff’s constitutional challenge to the process by which the legislature enacted the ballot exemption statutes was a non-justiciable political question because the claim focused on alleged violations of the legislature’s procedural rules. A ruling on that claim would have interfered in an area in which the constitution gives the legislature complete control and discretion.

Deborah Sumner, self-represented party, by brief. Joseph A. Foster, attorney general (Stephen G. LaBonte, assistant attorney general, on the brief), for the defendant.


Criminal Law

State of New Hampshire v. Albert J. Boutin III
No. 2014-0528
March 8, 2016
Affirmed

  • Whether the trial court unsustainably exercised its discretion in allowing a laboratory analyst to testify about a substance that was not introduced at trial
  • Whether a possession of marijuana charge should have been dismissed for insufficiency of the evidence when the state failed to introduce the substance alleged to be marijuana into evidence at trial

The defendant was charged with possession of marijuana after an officer located a substance that the officer believed to be marijuana in the defendant’s apartment. At trial, the state did not introduce the substance seized from the defendant’s apartment but rather relied on photographs, other documentary evidence, testimony of the police, and testimony of the laboratory analyst who analyzed a sample of the seized substance.

After the state rested its case, the defendant moved to dismiss the charge, arguing that the state failed to prove a prima facie case because there was no marijuana in evidence. The trial court denied the motion. The defendant again moved to dismiss the charge at the close of his case, and the trial court again denied the motion. The defendant was convicted and appealed.

On appeal, the NH Supreme Court held that the trial court did not unsustainably exercise its discretion in admitting testimony from the laboratory analyst because the state presented sufficient chain of custody evidence to allow the analyst to testify. The arresting officer assigned the seized substance an identifier and secured it in an evidence locker. The officer who transported the substance from the locker to the state laboratory had the substance in his possession for the entire time. Once the substance was taken to the laboratory, it was assigned a tracking number and placed in a secure vault. The laboratory analyst removed the substance from the vault, tested it, concluded that it was marijuana, and logged it back into the main evidence vault. Any gaps in the chain of custody would affect the weight of the evidence, not its admissibility.

The Court also ruled that the evidence was sufficient for the jury to find the defendant guilty of possession of marijuana. First, in accord with federal court decisions, the Court held that the state may prove the identity of a controlled drug through circumstantial evidence. Even if the only evidence produced at trial had been circumstantial, introduction of the seized substance would not have been necessary to prove that the substance was marijuana. Further, in this case, the evidence was not solely circumstantial. The state produced direct evidence through the laboratory analyst that the substance he tested was marijuana. Finally, the chain of custody evidence was sufficient for a rational jury to conclude that the substance tested was the same substance seized from the defendant’s apartment.

Joseph A. Foster, attorney general (Jason A. Casey on the brief and orally), for the State. Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.


Domestic Relations

Petition of Pamela Lundquist and Robert Lundquist
No. 2015-0103
March 8, 2016
Reversed

  • Whether the petitioners lacked standing to petition for grandparent visitation rights under RSA 461-A:13, I

The petitioners are the parents of the respondent and the natural grandparents of the respondent’s three minor children. The respondent’s husband (the natural father of the three minor children) died in August 2010. In June 2014, the petitioners filed a petition for grandparent visitation, which the trial court denied on the grounds that the petitioners lacked standing.

On appeal, the Court reversed, ruling that the petitioners did have standing to petition for grandparent visitation. Under RSA 461-A:13, I, a natural or adoptive grandparent has standing to petition for visitation when the minor child’s nuclear family is absent due to causes that include the death of a parent, unless the grandparent’s access to the child has been previously or contemporaneously restricted. In this case, the petitioners’ access to the minor children had not been restricted prior to or contemporaneous with the children’s father’s death. The fact that the petition was brought by the parents of the respondent, and not by the parents of the children’s deceased father, did not require a different result. Under the plain language of the statute, standing to petition for visitation does not depend on notions of bloodline or kinship. The petitioners’ standing to petition for visitation rights vested with the death of the children’s father.

Law Offices of Pamela J. Khoury, of Salem (Pamela J. Khoury on the brief and orally), for the petitioners. Law Offices of Lydon & Richards, of Nashua (Kalie L. Lydon on the brief and orally), for the respondent.


Torts

Lynette Maryea v. Thomas Velardi & a.
No. 2015-0351
March 8, 2016
Affirmed

  • Whether Strafford County was entitled to discretionary function immunity in an action for damages arising out of an automobile accident

The plaintiff, an inmate at the Strafford County House of Corrections, was injured when the inmate transport van in which she was riding collided with another vehicle. In her negligence claim against the county, the plaintiff alleged that the county was liable for her injuries because the transport van was not equipped with seatbelts in the back compartment where she was required to be seated. The former county sheriff had previously considered installing seatbelts in the county’s inmate transport vans, but decided against it, fearing that when corrections officers were adjusting inmates’ seatbelts, inmates might overwhelm the officers, take their firearms, and/or escape.

The county moved for summary judgment on the grounds that it was immune from liability because the decision not to install seatbelts was a discretionary function. In her objection, the plaintiff raised three arguments: (1) RSA 507-B:2 abrogated the county’s common law discretionary function immunity; (2) the transportation of prisoners was not a decision requiring a high degree of discretion protected by discretionary function immunity; and (3) the county was not immune because its operation of the transport van was a proprietary rather than a governmental function. The trial court granted the county’s summary judgment motion, and the plaintiff appealed. On appeal, the NH Supreme Court affirmed the trial court.

Rejecting the plaintiff’s claim that RSA 507-B:2 abrogated the county’s common law discretionary function immunity, the Court noted that discretionary function immunity is fundamental to our system of separation of powers because it limits judicial interference with legislative and executive decision-making. Reviewing decisions it had made since the enactment of RSA chapter 507-B, the Court noted that it had regularly applied discretionary function immunity in tort cases involving state and local government. The Court also noted that it had not interpreted RSA 507-B as “completely occupying” the field of governmental immunity so as to preempt common law doctrine. During this time, the legislature has not amended RSA chapter 507-B in a way that would affect the application of discretionary function immunity.

Rejecting the plaintiff’s claim that the transportation of prisoners was not a decision requiring a high degree of discretion protected by discretionary function immunity, the Court noted that the sheriff had decided that the danger to the officers and the public outweighed the increased safety that seatbelts would provide the inmates. This type of decision, which involved “weighing alternatives and making choices with respect to public policy and planning,” was a protected discretionary function.

Rejecting the plaintiff’s claim that the county was not immune because its operation of the transport van was a proprietary rather than a governmental function, the Court noted that in Merrill v. Manchester (1974), it had repudiated the distinction between proprietary and governmental functions as the basis for immunity. Although the plaintiff cited to cases from other jurisdictions that continue to employ the distinction between governmental and proprietary functions, she did not attempt to reconcile those cases with Merrill, nor did she argue that Merrill should be overruled in light of those cases.

The MuniLaw Group, of Epsom (Tony F. Soltani on the brief and orally), for the plaintiff. Maggiotto & Belobrow, of Concord (Corey Belobrow on the brief and orally), for defendant Strafford County.


Gregory Riso & a. v. Maureen C. Dwyer Esq. & a.
No. 2015-0361
March 18, 2016
Affirmed

  • Whether this case should be distinguished from Sisson v. Jankowski, in which the Court held that a drafting attorney does not owe a duty to an intended beneficiary to execute a will promptly

In February 2012, the decedent, Beatrice, who was 90 years old, hired the defendant attorney to revise her will so that one of her children, Gregory, would be the sole beneficiary of her estate and her other four children would be disinherited. On Feb. 28, 2012, Beatrice provided the defendant with the necessary information to draft the will and a letter from her physician stating that she was mentally competent. Beatrice advised the defendant that she wanted to execute the will by March 2, 2012. On March 10, 2012, Beatrice died without having executed the will.

Gregory filed suit against the defendant alleging that the defendant breached her duty of care by failing to execute Beatrice’s will promptly. In Sisson v. Jankowski (2002), the NH Supreme Court held that a drafting attorney does not owe a duty of care to a prospective will beneficiary to have the will executed promptly. Gregory argued that Sisson was distinguishable because Beatrice had committed to a date certain to execute the will and demonstrated that she would not change her mind, while the decedent in Sisson had not. The trial court disagreed and granted the defendant’s motion to dismiss.

On appeal, the Court affirmed the trial court, ruling that Sisson was not distinguishable. In Sisson, the Court ruled that the potential for conflict between the interests of a prospective beneficiary and a testator militates against recognizing a duty of care. It is the potential for conflict that is determinative, not the existence of an actual conflict. In the present case, the potential for conflict existed even though Beatrice committed to a deadline, because she may still have changed her mind. Even if Beatrice’s “certainty” eliminated the potential for conflict as to who her beneficiary would be, it would not eliminate the potential for conflict as to some other aspect of her estate plan.

Finis E. Williams III, of Concord, by brief and orally, for the plaintiffs. Preti Flaherty Beliveau & Pachios, of Concord (William C. Saturley and Gregory L. Silverman on the brief, and Mr. Saturley orally), for the defendants.


Worker’s Compensation

Appeal of Northridge Environmental, LLC (New Hampshire Compensation Appeals Board)
No. 2014-0776
March 22, 2016
Affirmed

  • Whether the NH Compensation Appeals Board (CAB) erred by determining that the petitioner was entitled to reimbursement for the services that his wife provided
  • Whether the CAB’s decision ordering reimbursement for 12 hours per day was arbitrary and not supported by the evidence
  • Whether the petitioner is entitled to the attorney’s fees that he incurred in a prior appeal

The petitioner was seriously injured on the job while working for the respondent, Northridge Environmental. Upon his release from the hospital, the petitioner was prescribed home health services through the VNA of Southern Carroll County. The respondent insurance carrier offered to pay for these services, but the petitioner chose, instead, to have his wife provide the services. Although the petitioner’s wife did not have formal medical training, she provided the services to the petitioner, including cleaning his wounds, bathing him, dressing him, aiding him in the use of the bathroom, helping him move around, and constantly supervising him.

The petitioner sought reimbursement from the carrier for the services provided by his wife. When the carrier denied the request, the petitioner requested a hearing before the NH Department of Labor (DOL) and sought reimbursement at $15 per hour, for 16 hours per day, from the date of his release from the hospital to the date of the DOL hearing. The DOL denied the request, so the petitioner appealed to the CAB, which also denied the request.

On appeal to the NH Supreme Court, the Court vacated the ruling and remanded to the CAB to determine, in the first instance, whether and to what extent the services by the wife were reimbursable. On remand, the CAB concluded that the petitioner was entitled to reimbursement for his wife’s services, and it was reasonable to reimburse the petitioner at $15 per hour, for 12 hours per day, for the requested period of time. The respondents appealed, and the Court affirmed.

The Court noted that the legislature has not explicitly defined “health care provider” and, contrary to the respondents’ assertion, RSA 281-A:2, XII-b did not provide an exhaustive list of those who may be considered health care providers for the purposes of the workers’ compensation statute. RSA 281-A:2, XII-b provides that, “‘Health care provider’ as used in this chapter includes doctors, chiropractors, rehabilitation providers, health services, health care facilities, and health maintenance organizations.” The legislature’s use of the term “includes” demonstrates that the list of “health care providers” is not exhaustive. Further, the legislature defined “health services” as “clinically related diagnostic, treatment, or rehabilitative services, as well as preventive services, and includes, without limitation, alcohol, drug abuse, and mental health services.”

Because there is nothing in this definition that limits “health services” to only services provided by trained medical professionals, one may be able to render health services, and, thus, qualify as a health care provider, without being a trained medical professional. In this case, the petitioner’s wife rendered prescribed care that aided in the plaintiff’s recovery. Accordingly, she rendered health services and, therefore, qualified as health care provider.

The Court next considered the CAB’s decision to reimburse the petitioner for 12 hours of health services per day. (The respondents did not challenge the $15 per hour rate.) Reviewing the petitioner’s wife’s testimony about the care she provided to the petitioner, the Court found that reimbursement for 12 hours per day was reasonable. It is better practice for health care providers to keep detailed records of their services, but the CAB had competent evidence to support its determination. The Court also ruled that the petitioner was entitled to reasonable attorney’s fees and costs incurred in his earlier appeal to the Court, pursuant to RSA 281-A:44, I. Although the earlier appeal ended in a remand, the petitioner nonetheless “prevailed” because the Court’s prior decision was an “essential step in the process that eventually led to the CAB awarding reimbursement.”

Law Office of Leslie H. Johnson, of Center Sandwich (Leslie H. Johnson on the brief and orally), for the petitioner. Mullen & McGourty, of Bedford (Craig A. Russo and Emily Conant on the brief, and Mr. Russo orally), for the respondents.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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