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Bar News - September 21, 2016


Supreme Court At-a-Glance

August 2016

Benefits Law

Hendrick v. NH Department of Health and Human Services
No. 2015-0442
Reversed and Remanded

  • Whether a New Hampshire administrative rule that requires the NH Department of Health and Human Services to include a disabled child’s federal Supplemental Security Income in the calculation of a household’s eligibility for benefits under the federal Temporary Assistance for Needy Families is constitutional

This decision by our Supreme Court deservedly got much press attention. Like many cases involving federal benefits, the devil is in the complexity of the details, at least for lawyers like me who do not tend these fields regularly. Fortunately for New Hampshire’s neediest families, New Hampshire Legal Assistance knows what it is doing.

In 2012, the legislature amended state law relating to the calculation of benefits under the federal Temporary Assistance for Needy Families Act (TANF). Following the legislature’s lead, in 2013 the NH Department of Health and Human Services (DHHS) amended its regulations to include a disabled child’s federal Supplemental Security Income (SSI) in the calculation of a family’s or household’s income eligibility for benefits. Three years later the Court says “no,” SSI benefits cannot be included in determining a household’s income eligibility. The Supremacy Clause in the federal constitution means that a disabled child’s SSI benefits cannot be used to reduce household benefits.

This change mattered. It meant that needy families and households had more “income” and higher incomes reduce benefits. One plaintiff saw her family’s TANF benefits drop from $847.80 per month to $259.20 the next month and then reduced to zero the following month as result of recalculating the household’s “income.” Critics of the change characterized this as balancing the state’s budget on the backs of its neediest residents. Plaintiffs argued that this impermissibly interfered with the disabled child’s right to the exclusive use of his or her SSI benefits.

After briefing and oral argument, the Court invited the Solicitor General to file an amicus brief addressing two questions: can the state reduce TANF benefits to a household that receives SSI benefits for a disabled child; and does inclusion of SSI benefits as “income” for a household—otherwise known as a “TANF assistance group” – violate federal Social Security law. The amicus brief was clear: “by deeming [the disabled child’s] SSI benefits available to the entire household, [the state rule] conflicts with federal requirements [that SSI benefits go exclusively to the child] and is therefore preempted.”

You cannot rob Peter, the household caregiver, on the basis of Paul, the disabled child’s benefits, especially where Peter is required by law to use Paul’s benefits solely for Paul. The Court deserves credit for laying out a detailed review of how TANF and SSI interact, and how preemption under the Supremacy Clause works here. Their review includes drawing distinctions between SSI benefits for children and for adults – the children are disabled and their benefits are not income to others in the household whereas the adults’ benefits supplement the adults’ income and can be included in calculations of the household’s income.

In the end, the Supremacy Clause prevailed, and here that is to the benefit of New Hamphire’s neediest families, as federal law intended. Hats off to the plaintiffs and New Hampshire Legal Assistance in this case; they had it right all along.

New Hampshire Legal Assistance, of Concord and Portsmouth (Ruth D. Heintz and Kay E. Drought on the brief, and Ms. Heintz orally), for the plaintiffs.

Joseph A. Foster, attorney general (MaryBeth L. Misluk, attorney, and Lynmarie Cusack, assistant attorney general, on the brief, and Ms. Misluk orally), for the defendant.

United States Department of Justice, of Washington, D.C. (Jeffrey E. Sandberg, attorney, on the brief), and United States Attorney’s Office, of Concord (T. David Plourde, chief, civil division, on the brief), as amicus curiae.


Constitutional Law

In Re N.B.; In Re J.B.
No. 2014-0765
August 19, 2016
Reversed

  • Whether any future lawsuit filed by this appellant against the New Hampshire Division for Children, Youth and Families or CASA – Court Appointed Special Advocates – must be filed as confidential and the pleadings submitted under seal

The appellant, Tammy Cole, is the grandmother of N.B. and J.B. She adopted her grandchildren after DCYF removed them from their parents’ custody and placed them in the Cole’s custody. In those various proceedings, CASA had served as the children’s guardian ad litem.

Subsequently, Cole sought to copy court records relating to the children’s abuse and neglect case. She also notified DCYF and CASA that her grandchildren had potential negligence claims against the agencies. The agencies objected to Cole’s request to copy records, and CASA sought a protective order limiting Cole’s inspection of the records to just that, review at the courthouse but no copies, and limiting Cole’s disclosure of the records.

The court granted Cole’s request to copy records but also granted CASA’s request for a protective order, prohibiting disclosure of any of the court records publicly and requiring that any lawsuit filed by Cole against DCYF or CASA be filed under seal as confidential. The Supreme Court concluded that the order that any suit be filed under seal and confidentially was an unconstitutional prior restraint on speech. The prohibition against public disclosure of any of the court records adequately protects – or, in constitutional terms, is “narrowly tailored” to protect – the interests of DCYF and CASA. The order to file suit under seal and confidentially is not narrowly tailored, does not use the least restrictive means to accomplish its purposes, and therefore is overbroad.

The Court is careful to delineate the contours of the state and federal constitutions’ prohibition on the prior restraint of free speech. In sum, courts should subject any content-based prohibition on matters of public interest to the most rigorous scrutiny, and prior restraint should be ordered only where there is a compelling state interest at stake and the restraint is narrowly fashioned.

Rilee & Associates of Bedford (Cyrus F. Rilee III on the brief), and Zimble & Brettler, of Boston, Massachusetts (Charles R. Capace on the brief and orally), for Tammy Cole.

Joseph A. Foster, attorney general (MaryBeth Misluk, attorney, on the memorandum of law and orally), for the New Hampshire Division for Children, Youth and Families.

Nixon Peabody of Manchester (W. Daniel Deane and Mark Tyler Knights on the brief, and Mr. Deane orally), for CASA of New Hampshire.


Criminal Law

The State of New Hampshire v. Terry Adams Jr.
No. 2015-0338
August 23, 2016
Affirmed

  • Whether a trial court has the discretion to correct an erroneously entered jury verdict by recalling the jury

We all make mistakes, and here there were several following jury deliberations in this criminal case. The defendant was charged with reckless conduct. The trial ended and the jury deliberated and several hours later returned to the courtroom with a verdict. When the foreperson announced the verdict, the court’s clerk heard the jury foreperson say “not guilty.” In fact, the foreperson had said “guilty,” but he had “cleared his throat or stumbled over his words.” The trial court “was not sure” what the foreperson had said, but the court concluded that it was “not guilty” when the court saw the clerk record the verdict in writing as “not guilty.” The trial court then told the jury it was “free to go” and invited them to return to the deliberation room so he could thank them for their service.

When trial court and the jury got to the deliberation room, the foreperson “almost immediately” asked the court whether it had heard the verdict announced as “guilty.” The court, recognizing its mistake, ended any discussion with jurors at that point, reconvened the parties in the courtroom, and brought the jury back to be polled in open court. The entire process, from the announcement of the verdict to reconvening the trial and bringing the jury back into the courtroom, took 15 minutes. The jurors all agreed that they found the defendant guilty of the charge of reckless conduct, and a “guilty” verdict was entered, correcting the earlier mistake.

On appeal, the defendant argued that the “not guilty” verdict became final after it was announced by the foreperson, collectively endorsed by the jurors, recorded by the clerk, and the court discharged the jury. The state argued, in response, that the jury remained in the courthouse, had not re-entered the public, and was not therefore discharged. Thus, argued the state, the trial court had the discretion to recall the jury and correct the mistake that arose when the jury read the verdict the first time.

The Supreme Court agreed with the state, concluding that the power to recall the jury is one of the supervisory powers of the court. How often do mistakes like this occur? Not often, to judge from the dates of some of the cases cited by the court. In 1884, apparently the same thing happened, and the court amended of the mistaken verdict even though the jury had been “separated,” or discharged. How much time can elapse? A few minutes, as was the case here, is better because there is less opportunity for re-deliberation, but in one civil case a jury was reconvened five days after the close of trial, and that was found to be within the sound discretion of the trial court.

The Court declined to decide two other issues raised by the defendant on appeal, concluding that one issue had not been preserved for appellate review and that the other was not supported by an adequate record on appeal.

Joseph A. Foster, attorney general (Sean R. Locke, attorney, on the brief and orally), for the State. Gleason Law Offices, of Haverhill, Massachusetts (Thomas J. Gleason on the brief and orally), for the defendant.


The State of New Hampshire v. David Aldrich
No. 2014-0774
August 30, 2016
Affirmed

  • Whether limits on defense counsel’s cross-examination of a victim violate the defendant’s right to confront his accusers, and whether the defendant was entitled to see certain DCYF records

David Aldrich was convicted on two counts of aggravated felonious sexual assault. He had before trial requested permission to cross-examine the victim about allegedly false prior allegations of sexual assault. The state objected, saying that the probative value of these “false” allegations was outweighed by the risk of misleading or confusing jurors, and that the prior allegations might have been true, because there was no conclusive evidence that the prior allegations were false. The court below granted some of the defendant’s requests and denied others.

On appeal, the defendant argued that the court misapplied the New Hampshire Rules of Evidence and violated his state and federal constitutional rights to confrontation. The Supreme Court disagreed.

With regard to the rules of evidence, the Court noted that the trial court has broad discretion to determine the scope of cross-examination. In gauging the probative value of proposed cross-examination, the Court uses a nine-part test that includes assessing whether the alleged instances in fact occurred. A lengthy analysis of the circumstances and the law satisfied the Court that the proposed cross-examination did not meet the test of showing that the alleged instances were in fact false.

The Court then turns to whether this limit on cross-examination violates the accused’s right to confront opposing witnesses. The Court rejected this argument, noting that the accused had the opportunity to cross-examine the accused about other inconsistencies in her testimony, including some instances where the victim’s testimony was alleged to be false, and that the instances in question here were not shown to be false.

Finally, the Court rejected assertions that access to additional records held by the Division of Children, Youth and Families should have been available. The court below and the Supreme Court both reviewed the disputed records in camera and rejected the defendant’s assertions.

Joseph A. Foster, attorney general (Sean P. Gill, attorney, on the brief and orally), for the state.

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.


Petition of State of New Hampshire (State v. Michael Lewandowski)
No. 2015-0569
August 23, 2016
Vacated and remanded

  • Whether in a criminal prosecution the state is required to obtain, preserve and produce for in camera inspection records of a complainant’s cell phone communications, social media communications, and cell phone service provider records, records which the defendant believes could be exculpatory

The breadth of the question suggests the hurdles faced by defense counsel, and by the end of this opinion the Court said “no,” the state did not have to cast that wide net. That said, two of New Hampshire’s best criminal defense attorneys gave their argument as good a shot as it could get.

The case arises from a prosecution for felonious sexual assault. Prior to trial, the defendant filed a motion requesting that the state take the steps necessary to preserve all of the complainant’s cell phone activity, including voicemails, text messages, emails, social media postings and photographs. Next the defendant asked the state to make preservation and production requests to all of the complainant’s internet service providers, including cell phone providers, Facebook and any other social media or communication provider used by the complainant. Not surprisingly, the state objected.

The trial court granted the defendant’s request subject to two limitations, one, that the request be narrowed to a two-month period, and two, that the records be produced for in camera inspection by the court. The state appealed.

The issue of the scope of the trial court’s authority in this context is one of first impression in New Hampshire, noted the Court. Following a quick survey of other states’ decisions on the issue, the Court concludes that it will adopt “the general proposition” that a “trial court cannot compel the state to obtain evidence for the defendant.” Here the state did not possess the records sought by the defendant. That meant that the court “acted illegally” with respect to its “authority” when it required the state to obtain and preserve these records.

The Court also rejected the defendant’s argument that there is no alternative means for a defendant to obtain such evidence. The Court pointed to the New Hampshire rules of criminal procedure, which permit defendants to serve a subpoena duces tecum on complainants and other third parties. The Court rejected the defendant’s assertion that this practice is not widely followed in New Hampshire and is burdensome. As for arguments relating to the state’s duty to disclose exculpatory evidence under Brady v. Maryland (1963), the Court concluded that duty relates only to evidence that the state actually has in its possession. Here, no one asserted that the state had any of this evidence in its possession.

The Court agreed that the criminal justice system’s duty is to seek justice, “not merely to convict,” and that in some cases the state’s failure to gather evidence could amount to suppression of material evidence. However, “this is not one of those cases,” in part because the defendant does not know if any of the evidence is, in fact, exculpatory.

Joseph A. Foster, attorney general (Sean R. Locke, attorney, on the brief and orally), for the State. Green & Utter, of Manchester (Cathy J. Green on the brief and orally), for the defendant.

Lothstein Guerriero, of Keene (Richard Guerriero on the brief), for New Hampshire Association of Criminal Defense Lawyers, as amicus curiae.


The State of New Hampshire v. Christopher Long
No. 2015-0349
August 19, 2016
Reversed

In May 2012, Christopher Long kidnapped the then-pregnant mother of his child. The child was born soon after. In March 2013, Long pleaded guilty to various criminal charges, some requiring immediate imprisonment and other sentences suspended. All of the guilty pleas included the “no-contact” provision that is the subject of this appeal. That provision prohibited contact in any manner with the victim or her immediate family: “The defendant shall have no contact with these persons in any manner whatsoever.”

Sixteen months later, Long filed a petition in circuit court seeking to establish a parenting plan for his and the victim’s child. The petition noted there was “a restraining order in full effect,” but did not mention the no-contact provision. Long asked the district court send the victim copies of all pleadings. Apparently the victim accepted service of the petition after being contacted by the court. She then filed a petition to terminate the defendant’s parental rights.

Several months later, the State moved to impose a portion of the suspended sentences on Long on the view that he violated the no-contact provision of those sentences by filing the parenting petition. The court below granted the State’s request, the additional prison sentences were imposed, and this appeal followed.

The Court reversed the decision below on several grounds. First, the Court thought the no-contact provision did not give the defendant adequate warning that the non-criminal act of filing a court petition would violate the no-contact provision. More importantly, at least in this writer’s opinion, the no-contact provision “implicates two of the defendant’s constitutionally-protected rights: (1) his right of access to the courts; and (2) his fundamental liberty interest in parenting his child.” Both are deserving of protection and thus the defendant’s due process rights under the State Constitution were violated when the court imposed a portion of his suspended sentences upon the filing of a parenting petition.

Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State. David M. Rothstein, deputy director public defender, of Concord, on the brief and orally, for the defendant.


Divorce Law

In The Matter of Deborah Munson and Coralee Beal
No 2015-0253
August 19, 2016
Vacated and remanded

  • Whether a trial court may consider premarital cohabitation when formulating an equitable distribution of marital property

This decision got a lot of attention when it was issued, because of its treatment of same-sex marriages as no different from more traditional marriages, at least when it comes to premarital cohabitation. The facts speak for themselves. Munson and Beal met in 1992 and began living together the following year. Fifteen years later they entered into a civil union, and on Jan. 1, 2011, by operation of law, their civil union was converted to a marriage. Fifteen months later, in 2012, Munson filed a petition for divorce.

At trial, Munson took the position that the parties’ marriage was a short-term marriage. As the Supreme Court has noted with regard to the division of marital property, a marriage of one or two years may be treated differently than a long-term marriage of 10, 20 or 30 years. In part, that is because it is easier to return property brought into the marriage and still leave the parties in no worse position than they were in prior to marriage. That is practically impossible in marriages of longer duration.

Here the duration of the parties’ marriage was barely more than a year, and the court below decided that the marriage was a short-term marriage. RSA 458:16-a, permits a court to consider “any other factor it deems relevant in equitably distributing the parties’ assets.” On appeal, the question is whether premarital cohabitation can be taken into account in determining whether an equal division of property is appropriate.

The Court begins its analysis by observing that in two earlier cases the Court had “found it unnecessary to decide whether the trial court may consider premarital cohabitation under RSA 458:16-a, II.” In this third case, the Court decides the issue, and it decides that courts may take premarital cohabitation into account.

In reaching that decision, the Court relies on decisions from other jurisdictions and on the argument of amici. That is, “when a divorcing couple’s relationship has included years of economically interdependent cohabitation followed by a ‘short’ marriage, the notion of returning the parties to their original pre-marital position is unrealistic because the relationship was not, in any relevant way, short term.” (Internal quotations omitted.)

The Court makes two additional findings. One, since the property division is a factor in determining alimony, the court below will need to reconsider alimony after re-determining the property division. And two, its ruling on premarital cohabitation applies to all divorce proceedings, because, as the Court notes, “premarital cohabititation in not unique to same-sex couples.”

Crusco Law Office, of Bedford (Kysa M. Crusco on the brief and orally), for the petitioner.

Shaheen & Gordon, of Manchester and Saco, Maine (Paul R. Kfoury Sr., Andrea Q. Labonte, and Courtney Michalec Hart on the brief, and Mr. Kfoury orally), for the respondent.

American Civil Liberties Union of New Hampshire, of Concord (Gilles R. Bissonnette on the brief), and Gay & Lesbian Advocates & Defenders, of Boston, Massachusetts (Mary L. Bonauto on the brief), for American Civil Liberties Union of New Hampshire and Gay & Lesbian Advocates & Defenders, as amici curiae.


In the Matter of Danielle Ross and Christopher Ross
No. 2015-0345
August 23, 2016
Affirmed

  • Whether a party filing a petition for divorce is disqualified from alleging fault as a grounds for divorce when that party began a sexual relationship some 11 months after the divorce petition was filed but before the divorce was final.

The short answer is yes. Here the husband lost the ability to assert claims based upon fault, because he was not without fault. It does not matter that the husband’s adulterous conduct occurred 11 months after the divorce petition was filed, or that the adultery was not a cause of the breakdown of the marriage. It remains adultery until the marriage is dissolved, even if the errant conduct occurred after the divorce petition was filed. The husband thereby lost the ability to claim more than half of the marital estate, and the court below granted the divorce on the grounds of irreconcilable differences.

On one other issue, whether the wife underreported her income, the Court held that issue was not preserved for review because the husband’s attorney – different from the husband’s attorney on appeal – had withdrawn the motion addressing that issue during the trial below.

Steven G. Shadallah, of Salem, on the brief and orally, for the petitioner. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the respondent.


Evidence

Arbay M. Osman v. Wen Lin
No. 2015-0561
August 23, 2016
Transferred question answered in the negative

  • Whether the trial court committed an unsustainable exercise of discretion in excluding the testimony of an expert based on its finding that the expert’s methodology failed to meet the threshold level of reliability required of an expert witness by RSA 516:29-a and New Hampshire law

Plaintiffs are all Somali Bantu refugees, mostly children resettled to the United States, others the children born of refugees resettled in the United States. All lived in the defendants’ apartments in 2005 and 2006. Those apartments were contaminated by lead paint, a known health hazard. The plaintiffs all have elevated levels of lead in their blood. They allege that they were injured by their exposure to lead paint while living in the defendants’ apartments.

Counsel for the plaintiffs hired an expert to assess whether the plaintiffs had neurological deficits that were more likely than not caused by exposure to lead paint. In making that determination he used two instruments, or tests, to measure verbal and nonverbal intelligence and general intelligence. The defendants also hired an expert, who challenged validity of the instruments used by plaintiffs’ expert. The challenge was based on the argument that the sample group of plaintiffs fell outside the “normative” group of persons for whom the tests were designed, because all of the plaintiffs had learned English as a second language, a fact that ultimately becomes determinative.

Stated differently, the tests used here were validated for use in the United States, to be taken by native English speakers. The tests have not been validated, or “normed,” for recent immigrants to the United States from sub-Saharan Africa, and one of the tests specifically excludes children for whom English is a second language.

The trial court held a six-day hearing on the disputed evidence. There was evidence that plaintiffs’ expert used different “cutoff” scores in an effort “norm” the scores for the refugees. And the court heard plaintiffs’ expert testify that he did not know “how a normal, healthy Somali Bantu [refugee child] would perform on any of the tests administered.”

For some years the standards announced in Daubert v. Merrell Dow Pharmaceuticals Inc. (1993) have to be met for an expert to testify. Those standards are reflected in New Hampshire Rule of Evidence 702 and RSA 516:29-a and include the requirement that the methodology be generally accepted and reliable. The trial court, in a 19-page “well reasoned” order concluded that the expert’s methodology was not reliable and it could not reliably be applied to the facts of this case.

The Court on appeal could not conclude that the trial court committed an unsustainable exercise of discretion in excluding the testimony of the plaintiffs’ expert. There were just too many questions about the reliability of the test results. Testing measures developed for use in the United States could not be “normed” for Somali Bantu refugees. There was no discussion of whether other tests might have worked or whether there are any “normed” tests for Somali Bantu refugees available in the United States today.

The care that both the trial court and the Supreme Court took in deciding this issue is evident in their lengthy, detailed decisions. That, it seems to me, reflects a reluctance to disadvantage refugee children resettled in apartments contaminated by lead paint. On that point, one hopes all would agree these refugee children deserved better.

Shaheen & Gordon, of Manchester (Francis G. Murphy on the brief and orally), and Seufert Law, of Franklin (Christopher J. Seufert on the brief), for the plaintiffs. Primmer Piper Eggleston & Cramer, of Manchester (Gary M. Burt and Adam R. Mordecai on the brief, and Mr. Burt orally), for defendants Wen Lin, Lepa Lin, and Property Services Company LLC.


Property Law

Lake Forest FV Resort, Inc. v. Town of Wakefield
No. 2015-0205
August 23, 2016
Reversed in part and remanded

  • Whether the Resort’s proposed cabins are “recreational camping cabins” as defined in RSA 216-I:1, VII-a, and if so, whether the size of the cabins is limited to 400 square feet?

The plaintiff owns a 105-acre tract of land in Wakefield and obtained approval to construct 16 cabins on two-acre lots in a 37-acre parcel on that tract. Several years after the planning board approved the construction of 600-square-foot cabins, the plaintiff sought to increase the size of the cabins to 850 square feet. The town planner denied that request, and informed the plaintiff that any newly constructed cabins could only be 400 square feet in size, by operation of RSA 216-I:1, VII-a. The plaintiff challenged that denial in a prior case, and the court then concluded that plaintiff could construct 600 square foot cabins.

Four years later, the plaintiff again asked the planning board to approve 850 square foot cabins. When that request was again denied, the plaintiff returned to court. The court agreed with the town that 400 square feet was the limit imposed by the statute. Plaintiff appealed.

After some discussion, the Court concluded that the 400 square foot limit was a just a definition, not a limitation. Thus cabins that are less than 400 square feet in size are, by definition, “recreational camping cabins.” Cabins larger than that are not “recreational camping cabins,” but that does not mean that the statute limits the plaintiff to constructing cabins that are no larger than 400 square feet. There is no such limit on the size of cabins in the statute.

Accordingly the trial court erred in ruling that the cabins could be no larger than 400 square feet, the Court remanded the dispute to the court below with instructions to vacate the planning board’s decision and to remand the matter to that board to address the plaintiff’s request to build larger cabins on the remaining lots.

Cooper Cargill Chant, of North Conway (Christopher T. Meier on the brief and orally), for the plaintiff. Sager & Haskell, of Ossipee (Richard D. Sager on the brief and orally), for the defendants.


Real Estate Law

412 South Broadway Realty et al. v. John M. Wolters, Jr., et al.
No. 2015-0498
August 23, 2016
Affirmed in part, vacated in part and remanded

  • Whether appellant-defendants benefited from a deeded right-of-way,
  • Whether defendants were liable for abuse of process in a related planning board dispute, and
  • In a cross-appeal, whether the trial court erred in finding the defendants had not committed slander of title and in calculating the damages for abuse of process

This protracted case began in 2009, when plaintiffs 412 South Broadway sued the defendants and Cumberland Farms for unlawfully expanding a right-of-way on Cumberland Farms’ property in Salem. The right-of-way related to access to Route 28, an important thoroughfare. The defendants filed several counter-claims, relating to their alleged right-of-way.

The defendant’s claim to a deeded right-of-way failed, because the 1874 deed upon which it was based gave the owner of the deed only a life estate, and any easement lapsed upon his death. The defendants then tried to raise other issues, including estoppel issues, but the Court concluded the other issues had not been properly raised below or preserved for appeal.

Next, the Court addressed the abuse of process claim. This arose from related proceedings before the planning board where the defendants had allegedly failed to investigate fact before asserting adverse possession, had pursued issues they knew were not within the jurisdiction of the planning board, and had made “near extortionate” settlement demands.

The defendants first argued that the abuse of process claim should not survive the trial court’s earlier denial of attorney’s fees to the plaintiffs. If the plaintiffs cannot recover attorney’s fees, so the argument says, they should not be able to recover on their abuse of process claim. The Court disposes quickly of those arguments, finding that collateral estoppel and res judicata do not apply in these circumstances.

Then the Court turns to defendants’ argument that emails relating to settlement should not have been admitted into evidence in the abuse of process claim. The Court notes that settlement discussions are not automatically excluded from evidence if they are offered for a purpose other than proof of a claim. However, courts have generally held that abuse of process claims are closely related to proof of an underlying claim. Therefore, evidence of settlement discussions should generally be excluded from evidence in a claims. On that basis, the Court vacates the trial court’s conclusion that the defendants were liable for abuse of process and remands that issue for further consideration.

Turning to the plaintiff’s claims, the Court rejects their argument that the defendants should have paid their property taxes during the pendency of these proceedings. Plaintiff’s concern, that construction was delayed and its business opened later as a result of this litigation, does not change the fact that the plaintiff would have had to pay property taxes in any event. Plaintiffs slander of title claims fail because the statements that were the basis of those claims were made in connection with litigation and therefore are covered by judicial privilege. Finally, plaintiffs were denied attorney’s fees, a decision the Court upholds based on evidence that traffic over the disputed easement was well known for several decades and wider in the past than today, meaning that the defendants’ claims had some basis in fact if not in law.

Wadleigh, Starr & Peters, of Manchester (Michael J. Tierney on the brief and orally), for 392 South Broadway LLC. Cleveland, Waters and Bass of Concord (David W. Rayment and Mark S. Derby on the brief, and Mr. Rayment orally), for John M. Wolters, Jr. and Steven M. Lospennato. Johnson & Borenstein of Andover, Mass. (Mark B. Johnson and Kathleen M. Heyer on the brief, and Mr. Johnson orally), for Emmett Horgan, Trustee of the FUN Trust.


Right To Know Law

Grafton County Attorney’s Office v. Elizabeth Canner
No. 2015-0536
August 23, 2016
Affirmed and remanded

  • Whether the Right To Know Law grants access to arrest and prosecution records in the custody of a town’s police department and the county attorney’s office, where a criminal defendant’s petition for annulment was pending at the time of the request

Elizabeth Canner asked the Town of Hanover and the Grafton County Attorney’s Office for copies of arrest and prosecution records in their possession relative to “John Doe.” The Court is scrupulous in withholding details of John Doe’s acquittal on multiple felony counts, without saying more. That said, any reader of the Valley News would know that the case involved a documentary filmmaker asking to see the arrest and prosecution records of a Dartmouth student accused of rape, because the prosecution got a lot of attention at the time.

Following his acquittal, John Doe sought to annul the records of his arrest and conviction, and the court below granted his petition. That put state police and court records “off limits” to Canner. However, it was not clear whether the town police and county attorney’s office were exempt from disclosure requirements, even after the annulment was granted.

There is no specific exclusion for annulled criminal records in the Right to Know Law. Hence Doe relied on the annulment statute itself, which provides that, “The person whose record is annulled shall be treated in all respects as if he or she had never been arrested, convicted or sentenced,” RSA 651:5, X(a). The Court concluded that Doe’s argument fails for several reasons.

First, while the annulment statute expressly requires courts and the state police to make annulled records “inaccessible to the general public,” there is no similar requirement imposed on arresting and prosecuting agencies. If the legislature had intended to remove arresting and prosecuting agencies’ records from the reach of the Right to Know Law, says the Court, the legislature would have said so.

Second, the Court shows a real reluctance to turn what it calls “the public event” of a criminal prosecution “into a private, secret or secluded fact.” To do so would put public information beyond the reach of the public. That, the Court concludes, “would indeed be ‘Orwellian.’”

Third, the Court rejects the notion that Doe’s acquittal entitles him to more protection than those convicted of crimes. The Court rejects that argument, noting that the public has a legitimate interest in knowing the basis for any arrest and prosecution, if for no other reason than to know whether the town police and county prosecutors are doing their jobs properly. Here the public’s right to know is “heightened” by internet links that lead to “quickly... retrievable,” detailed information about the case simply using Doe’s name.

This is not the end of the matter. The trial court bifurcated the proceedings below and has yet to decide whether the records related to Doe’s arrest and prosecution are exempt from disclosure on the grounds of attorney work product, confidentiality, or invasion of privacy. Stay tuned!

Lara J. Saffo, county attorney, on the brief, for the Grafton County Attorney’s Office.

Prince Lobel Tye of Boston, Massachusetts (Robert A. Bertsche on the brief and orally), for Elizabeth Canner. DesMeules, Olmstead & Ostler, of Norwich, Vermont (George H. Ostler on the brief, and Cabot R. Teachout orally), for John Doe. Gallagher, Callahan & Gartrell, of Concord (Charles P. Bauer on the memorandum of law), for Town of Hanover/Hanover Police Department.

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New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
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