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Bar News - October 19, 2016

Supreme Court At-a-Glance


September 2016

Appeal from the Board of Psychologists

N.C. v. New Hampshire Board of Psychologists
Board of Psychologists v. Alethea E. Young, PhD
No. 2015-0412
Sept. 20, 2016

  • Questions on appeal from the Superior Court regarding the necessary showing the Board of Psychologists must make under RSA 329-B:22 (Supp. 2015) to support a subpoena of patient records when the patient has asserted RSA 329-B:2, V psychologist-patient privilege

On appeal from the Superior Court, movant and petitioner sought to overturn the denial of psychologist Althea Young’s motion to quash the Board of Psychologist’s subpoena for patient records and patient N.C.’s petition for declaratory judgment that the records were private.

The Court explained the relevant facts as follows. Movant had treated petitioner for many years since the age of 2. Movant had at times jointly counseled petitioner and her father. In August 2013, in a counseling session, movant learned of an incident that she believed constituted abuse, but delayed several days in reporting it to DCYF. Instead, immediately after learning of the incident, movant, petitioner and petitioner’s father made alternative overnight plans for petitioner, following which petitioner was to be picked up by her father. However, because petitioner’s father would not meet with movant prior to picking up petition, movant did not release petitioner to her father. Petitioner was transported into Vermont where her mother picked her up. Petitioner’s father was not advised of the changes in the plan until after it was in effect.

Petitioner’s father filed a formal written complaint with the Board alleging that movant had committed professional misconduct, including but not limited to, alleging that movant had become “personally over-involved” with petitioner and had created a conflict of interest in counseling both petitioner and her father. Movant filed a written response to the complaint with the Board of Psychology summarizing the facts from her perspective.

Following receipt of movant’s written response, the Board opened an investigation into the complaint. As part of that investigation, the Board issued a subpoena duces tecum requesting copies of all records pertaining to the treatment of petitioner from the date treatment commenced, and filed a petition in Superior Court to compel compliance. When advised of the subpoena, petitioner asserted privilege. This led movant to file a motion to quash and petitioner to file a petition for declaratory judgment.

Finding that the Board was authorized to subpoena psychological records at any time and had met its burden of demonstrating that it had just cause, which was under RSA 329-B:22 to issue the subpoena even in the course of a formal investigation, the Superior Court denied the motion to quash and dismissed the petition for declaratory judgment.

On appeal, the Court reaffirmed the importance of the psychologist-patient privilege and also recognized the importance of the Board’s regulatory function. The Court agreed with movant and petitioner that RSA 329-B:26 requires the board to obtain a court order before obtaining patient records when an objection based on privilege has been raised in opposition to a subpoena. Finding that the two sections of the statute (RSA 329-B:22 and :26) can be read together without conflict, the Court held that the Board is authorized to, upon just cause, issue a subpoena at any time; but when privilege is raised, disclosure is permitted only upon court order. This requires court review to determine whether or not just cause exists upon which to compel compliance with the subpoena.

The Court did not decide whether, in a court review of a subpoena issued by the Board for psychological records, the Board would also have to demonstrate a reasonable probability the records contain material and relevant information and that the Board has an essential need for the records, as required by Declos, 153 NH at 615-17. However, based on the facts of the case, the Court found that Board would have met these showings. The Court found that the allegations were serious, and the movant had confirmed certain alleged facts in her written response, supporting the Board opening the investigation. Further, because the allegations put the psychologist-patient relationship under investigation, the records were material and relevant. The Court additionally noted that due to the private nature of the relationship, there was a need for the Board to obtain records.

Lastly, because the psychologist- patient relationship was the issue of the investigation, as opposed to going to a collateral issue in the dispute, the court was not required to conduct an in camera review to limit the scope of the disclosure.

Accordingly, the Court affirmed the trial court’s ruling.

Geoffrey J. Vitt (orally), with Sarah J. Merlo and Jennifer B. Harman, Vitt & Associates, PLC (on the brief), and Jason R. Crance, Hanover (on the brief) for appellants. Joseph A. Foster, attorney general, with Elizabeth A. Lahey, assistant attorney general (on the brief and orally), for the New Hampshire Board of Psychologists.

Appeal from the Board of Transportation

Appeal of James G. Boyle, as Trustee of the 150 Greenleaf Ave. Realty Trust
No. 2015-0471
Sept. 20, 2016

  • Whether a finding under Section 7(a) of the New Hampshire Department of Transportation’s Driveway Policy that the safety of the public can be adequately protected is mutually exclusive of a simultaneous finding under Section 7(e) of the Driveway Policy that a proposed driveway would cause an unreasonable hazard to the traveling public

The petitioner, a business owner in Portsmouth, had applied for a driveway permit to build a second driveway for an expansion of and addition to his existing business. The property had an alternative ingress and egress currently serving the existing business which petitioner also intended to retain.

The petitioner’s original application was denied by the District Engineer because the property had historical alternative access that was determined to be a safer alternative than the proposed additional driveway. The petitioner appealed the denial of his driveway application to the Department of Transportation. After hearing, the hearings examiner upheld the denial, based on findings that the property was not landlocked and the purpose of the Driveway Policy was to maximize safety and minimize conflict points in the public roadways.

In an appeal to the Transportation Appeals Board, the board noted testimony of the district engineer that the proposed driveway provided adequate safety to the traveling public, but also would present an unreasonable hazard because there was an alternative driveway already available. After additional hearing by the hearing examiner on remand and a second appeal to the Transportation Appeals Board, the petitioner appealed the denial of his application to the Supreme Court. The DOT did not appeal the finding by the Board that the proposed driveway adequately protected the safety of the traveling public.

The petitioner argued that the Board’s decision was clearly unreasonable and unlawful. Reviewing the interpretation of the Driveway Policy de novo and applying regular rules of statutory and regulatory interpretation, the Court agreed with petitioner. The Court found that the terms “safety” and “unreasonable hazard” are not defined by the Driveway Policy. Ascribing these terms their common usage, the Court found that safety, in general, means affording protection from danger, while unreasonable hazard means a peril that is excessively dangerous.

Because both Sections 7(a) and 7(e) are mandatory enforcement provisions as written, only one can control on a given application. Accordingly, the Court held that a finding that a driveway adequately protects the safety of the traveling public necessarily precludes a simultaneous finding that the proposed driveway presents an unreasonable hazard.

Especially where the Board’s finding that the proposed driveway adequately protected the safety of the traveling public was unchallenged by the DOT on appeal, and therefore not subject to review, the incompatible finding that the proposed driveway also created an unreasonable risk to the traveling public could not stand. Such inconsistent findings on the same record were found by the Court to be capricious and insufficient to support the denial of petitioner’s driveway permit application.

John Kuzinevich, Duxbury, Mass., (on the brief and orally), for the petitioner. Joseph A. Foster, attorney general, with John J. Conforti, assistant attorney general (on the brief and orally), for the New Hampshire Department of Transportation.

Appeal from the Department of Employment Security

Appeal of Annelie Mullen
No. 2015-0605
September 30, 2016

  • Whether the action of the Commissioner of the Department of Employment Security in ordering that a final hearing be reopened to introduce additional evidence not considered violates a person’s constitutional rights and/or exceeds the commissioner’s authority

In 2011, the New Hampshire Department of Employment Security determined that petitioner had been overpaid for her unemployment benefits because she had knowingly failed to report work and earnings. Accordingly, petitioner was informed that she would have to repay her overpaid benefits. She appealed the decision to the appellate tribunal, which upheld the decision. Upon petitioner’s request, the Commissioner reopened the appeal under RSA 282-A:60 and granted a new hearing. In the reopened de novo hearing, the tribunal found that the overpayment was without petitioner’s fault.

After this re-hearing, the commissioner, upon her own initiative, determined that there was evidence that should have been considered regarding unemployment compensation fraud, believing that the testimony of one particular witness should not have been excluded. Petitioner appealed to the Department’s Appellate Board, which determined that it did not have authority to review the commissioner’s decision. Petitioner then appealed to the NH Supreme Court. In this first appeal to this Court, the Court determined that the issues were not yet ripe, as the Board had not issued an order for the Court to review.

A third new hearing was held, and again it was determined that petitioner had been overpaid. Petitioner again appealed to the commissioner; and the commissioner in turn again ordered a limited reopening, at which time the number of penalty weeks was reduced. Petitioner appealed that decision to the NH Supreme Court, and the Court dismissed her appeal without prejudice, holding that she had not yet exhausted her administrative remedies.

Thereafter, Petitioner made one final appeal to the Commissioner to reopen and reverse the finding, which the commissioner denied. Petitioner then appealed that decision to the Board, which upheld the decision, and this third appeal to this Court followed.

In her appeal, petitioner raises the two issues: 1) whether the commissioner’s decision on her own initiative to reopen her proceeding violated her substantive due process rights, and (2) whether it also exceeded the commissioner’s power.

Turning first to the due process right argument, the Court determined that petitioner “referred” to a substantive due process right in her filings, but only ever briefed an argument pertaining to a procedural right. Reaffirming that extended consideration of “passing references” or “off-hand invocations” to constitutional rights without developed supporting argument is not warranted, the Court only considered petitioner’s arguments pertaining to procedural due process.

Under Part I, Article 15 of the State Constitution, the Court found that petitioner had a sufficient interest in her unemployment compensation to entitle her to due process. The court then turned to the three-part balancing test that is used to determine what process was due: 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 brought about by additional procedural requirements. See Gantert v. City of Rochester, 168 NH 640 (2016). The Court held that petitioner had not presented any evidence of any actual bias on the part of the commissioner. There was no evidence that the commissioner conducted the investigation into the overpayment of benefits or that the commissioner participated in the hearing after the decision to reopen was made. Balancing the different interests, the Court found that the process afforded to petitioner did not violate her due process rights.

Turning next to petitioner’s argument that the commissioner had exceeded her authority, the Court looked to RSA 282-A:60. In interpreting the statute, the Court found that the commissioner was not an “interested party” under the statute, and that the statute did not prevent the reopening of cases that were decided favorably to a claimant. The statute allows reopening on the basis of fraud, mistake, or newly discovered evidence, and the commissioner had acted within her power. Accordingly, the Court upheld her decision denying the reopening and reversal of petitioner’s case.

Kay E. Drought, New Hampshire Legal Assistance of Portsmouth, Sarah Mattson Dustin, New Hampshire Legal Assistance of Concord for petitioner. Joseph A. Foster, Attorney General, Brian W. Buonamano, Assistant Attorney General for the New Hampshire Department of Employment Security.

Criminal Law – Sentencing

State of New Hampshire v. Amadou Diallo
No. 2015-0247
Sept. 20, 2016

  • Whether information provided in an amended indictment could serve as the requisite notice required by RSA 651:6, so as to put a defendant on notice that the State was seeking an enhanced penalty for a felonious sexual assault

Amadou Diallo sought this appeal after being convicted for a felonious sexual assault and being sentenced to a term of 10-20 years. At the outset of his trial, Diallo, by way of counsel, brought it to the attention of the court that while the indictment charge read “aggravated felonious sexual assault,” the body of the indictment only alleged the elements for felonious sexual assault.

After the proper motion from the state, the indictment at issue in this appeal was amended so as to strike the word aggravated. The rest of the indictment, including the possible penalty of 10-30 years, $4,000 remained. After the conviction, the state recommended a sentence of 10-20 years, with the defendant arguing that the maximum he could face for a class B felony was seven years, with the state having not formally given him notice that it would be seeking an enhancement. After a further hearing, the Court sentenced Diallo to the requested 10-20 years finding that the amended indictment satisfied the requirements of notice required by RSA 651:6.

On appeal, the Diallo argued the timing requirement found in RSA 651:6 should serve as evidence that the legislature intended something more than the mere charging papers. However, the Court did not find this persuasive, finding that “…the statute provides only that written notice must be given no later than twenty-one days prior to jury selection.” Further, the Court noted that unlike other statutes that speak to specific forms the state must use when seeking an enhanced penalty, the statute at issue here spoke only to written notice. The Court also rejected Diallo’s argument that Superior Court Rule 99-A obligated the state to give some other advance notice.

Finally, Diallo argued that even if an indictment satisfies the requirements of notice found in RSA 651:6, the indictment here failed to provide him with the basis that the state was using so as to seek the enhanced penalty. However, as the Court discusses, this issue became moot when the indictment was amended from an “aggravated felonious sexual assault” to a “felonious sexual assault” as that worked to foreclose one of the possible ways that the state could argue for a sentence enhancement.

As the Court discussed, the only remaining way for the state to seek an enhancement was to prove that the victim was under the age of 13 at the time of the offense, which was also an element of the crime itself. Thus, having found that the notice was sufficient, the Court further found that Diallo had not been prejudiced by the failure of the state to provide the specific basis for the enhancement.

Although the Court found that in this instance an indictment sufficed for the notice requirement of RSA 651:6, the Court was careful to say that this may not be the case in all instances and that the better course of action for the state would be to timely file a more formal notice with the defendant and court.

Joseph Foster, NH Attorney General Elizabeth Woodcock, Assistant Attorney General for the State. Stephanie Hausman, Chief Appellate Defender for Diallo.

Property Law

New Hampshire Housing Finance Authority v. Pinewood Condominium Association
No. 2015-0514
Sept. 20, 2016
Reverse and remanded

  • Whether a mortgagee of a condominium unit, after a successful foreclosure of the property, owns the property free and clear of any prior encumbrances that may have been levied by the condominium association, where the association did not seek a priority lien prior to the foreclosure.

In 2005 Patricia Rugg purchased a condominium unit in the Pinewood’s condominium complex in Manchester. Rugg obtained a mortgage for the unit from a local bank that assigned said mortgage to the New Hampshire Housing Finance Authority (NHHFA). Rugg died in 2011. Following her death, assessments from the condominium association went unpaid, along with her mortgage payments. In August 2012 Pinewood informed Rugg’s estate and NHHFA as first mortgagee that the unit’s common services would be terminated if the past due payments were not made current. They were not made current and the common services were shutoff. In January 2013, NHHFA filed a petition for foreclosure, which was granted. NHHFA paid the past due payments that were incurred after the foreclosure, but refused to pay any that were incurred prior. Pinewood refused to return services to the unit, and NHHFA filed for a declaratory judgment. Summary judgment was issued in favor of Pinewood and this appeal followed.

On appeal, NHHFA argued that any obligation to pay the past due payments were extinguished by the act of foreclosure, as NHHFA took the property “free and clear” of any prior encumbrances. Pinewood, in arguing that the payments were still an obligation of NHHFA, relied on the Condominium Act, which allows an association to terminate common services should payments to the authority go paid.

Further, in concluding that NHHFA was not obligated to pay the pre-foreclosure payments, the Court relied upon the fact that Pinewood had not applied for or attempted to receive a priority lien in order to collect the past due payments. The Court concluded that since Pinewood failed to promptly file for a priority lien, its right to collect were not superior to the foreclosure that NHHFA lawfully obtained. Thus, the Court concluded that when the foreclosure was complete, NHHFA took possession of the property free and clear of the prior existing encumbrances, and was only obligated to pay the amounts due after the foreclosure.

Law Office of Joshua L. Gordon for Petitioner.

Cronin, Bisson & Zalinsky, P.C., (Mark E Connelly, Daniel D. Muller, Jr., Ashley B. Scott) for Respondents. Gallagher, Callahan & Gartrell (W. John Funk and Robert J. Dietel) for: Cooperative Credit Union Association Inc. Mortgage Bankers and Brokers Association of New Hampshire, Inc., and New Hampshire Banders Association, as amici curiae.

Maher M. Mahmoud v. Town of Thornton et al.
No. 2015-0712
Sept. 20, 2016

  • Whether a mortgage deed is amended so as to increase the amount of land conveyed, when the deed describes the specific land and also includes additions, and where a later recorded subdivision plan records the property as having an increase in space from that originally conveyed

Maher Mahmoud originally purchased a 17-acre tract of land. After approval from the Town of Thornton, Mahmoud subdivided a parcel of land, Lot 1, that he mortgaged to Mortgage Electronic Registration Systems, Inc, listed as plan 11808. As described by a filed mortgage deed, the property was 1.06-acre tract of land, further described as “…All replacements and additions shall also be covered by this Security Instrument.” Mahmoud later obtained a second subdivision, 12600, which listed the property of Lot 1 as 2.4 acres. This plan was recorded. Mahmoud defaulted on his loan, after which time Mortgage Electronic Registration Systems promptly foreclosed the property and was granted a deed that contained the same language as before, and noted the two subdivision plans.

The property was then conveyed between several different owners, finally ending with Aaron Katz and Jeremey Gavin. Mahmoud filed a suit, seeking to reduce the size of Lot 1 to the original size of 1.06 acres. After summary judgment was granted for the defendants, Mahmoud appealed.

In affirming the order granting summary judgment for the defendants, the Court held that because of the language contained in the deed, coupled with the plans that were on filed, the later deed included the additional property as an “improvement” which would have been included in the original deed. In concluding so, the Court was guided by Hellweg v. Cassidy, 71 Cal. Rptr. 2d 798 (Ct. App. 1998), finding that the facts and issue were so similar.

Maher M. Mahmoud, for himself. Mitchell Municipal Group, P.A. (Steven A. Whitley) for the Town of Thornton, Wadleigh, Starr & Peters, PLLC, (Robert E. Murphy, Jr.) for Winwin Properties aand Gary T. Shulman, Anita S. Shulman, Aaron Katz, and Jeremy Gavin LLC, and Primmer Piper Eggleston & Cramer PC, (Thomas J. Pappas) for Bank of New York as trustee for certificate holders CWABS, Inc.

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