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Bar News - January 18, 2017


Supreme Court At-a-Glance

By:

December 2016

ADMINISTRATIVE LAW

Appeal of Katherine Streeter
No. 2016-0175
Dec. 13, 2016
Affirmed

  • Whether employer made a “de facto” determination that the employee’s injury was compensable when the employer’s insurance company paid indemnity benefits for a two-week period during which the employee was unable to work after receiving some treatment for an injury previously sustained in the course of employment

In November 2013, petitioner Katherine Streeter injured her left shoulder while at work for respondent Garrison Medical. Petitioner notified respondent on Dec. 16, 2013, and respondent filed a First Report of Injury with is insurance carrier the next day. On Dec. 19, Streeter was diagnosed with tendonitis and referred for physical therapy. After she received a steroid injection in March 2014, she was unable to work for two weeks, during which time the respondent’s insurance company paid indemnity benefits. On April 3, the respondent submitted a Memo of Denial of Workers’ Compensation Benefits, which denied ongoing disability and medical as the injury was not causally related to employment. On May 20, petitioner had surgery to repair a lesion in her shoulder and was unable to work until August 25, when she returned to her job.

Petitioner requested a hearing with the New Hampshire Department of Labor after which the hearing officer found that her injury was causally related to her employment and awarded her payment for medical treatment and indemnity benefits from May 20, 2014 through Aug. 24, 2014. Her attorney was awarded 20 percent of the retroactive indemnity award payable from the benefit received by the employee pursuant to New Hampshire Administrative Rules, Lab 207.01(a)(1).

Petitioner’s attorney then requested additional fees and costs to be paid by the insurance company pursuant to New Hampshire Administrative Rules, Lab 207.01(a)(4). Under that rule, when the issue in dispute in a workers’ compensation hearing “relates to medical bills and a period of disability subsequent to the case being found compensable,” the attorney for a claimant who prevails before a hearing officer is entitled to “20 percent of the retroactive benefits payable out of the benefits received from the claimant” and “fees and costs paid by the carrier as a result of disputing the medical bill issue.” The hearing officer denied this request finding the request for legal fees relative to the award of medical benefits was inappropriate in this case.

Petitioner appealed to the New Hampshire Compensation Appeals Board, which agreed with the hearing officer and denied the petitioner’s request. This appeal followed, and the NH Supreme Court affirmed the decision.

New Hampshire administrative rules state that if disability benefits have been paid with the first 21 days of the receipt of notice of disability and the employer or carrier determines that payment should not have been made they may cease weekly payment of compensation. NH Admin. Rules, Lab 506.02(p). If benefits had been paid after 21 days following the notice of disability, the carrier shall request permission of the department to terminate benefits.

The Court agreed with the compensation appeals board that the first time the petitioner’s bills and indemnity benefits were found compensable was when the hearing officer found them to be so, citing NH Admin. Rule Lab 504.02(e) which states that the filing of the employer’s first report of injury shall not prejudice the employer’s right to contest compensability at a later date. The Court held that because the initial determination of whether the petitioner’s injury was causally related to her employment was made by the hearing officer, the petitioner’s attorney was entitled only to 20 percent of the retroactive indemnity benefits payable out of the benefit received.

Francis G. Murphy, of Manchester (on the brief) for the petitioner. John B. FitzGerald, III, of Manchester, (on the brief), for the respondent.


CORPORATIONS

Mark E. McDonough v. Patrick M. McDonough & a.
No. 2015-0694
Dec. 23, 2016
Affirmed

  • Whether the omission of the word “majority” in RSA 304-C:130, III, requires a unanimous vote to revoke a dissolution of a limited liability company

In 1992, brothers Mark, Matthew, and Patrick McDonough established TASC, a corporation that provides technical engineering services. In September 1995, the brothers converted TASC to a Limited Liability Company (LLC). At some point, the brothers had a falling out, after which plaintiff Mark McDonough sued defendants Patrick and Matthew McDonough seeking a declaration that TASC must dissolve by Sept. 30, 2015, pursuant to its certificate of formation and operating agreement.

The operating agreement states: “The Company shall have a term beginning on the date the Certificate of Formation is filed… and shall continue in full force and effect for a term of 20 years, unless sooner terminated or continued pursuant to the further terms of this Agreement.”

On Aug. 7, 2015, the defendants, constituting a majority of TASC’s members, voted to dissolve TASC and then immediately voted to revoke the dissolution. The trial court ruled that TASC was not required to dissolve because its operating agreement permits a majority of its member to continue the company and that the Aug. 7 dissolution and revocation had no effect on TASC’s governing documents and denied summary judgment to the plaintiff.

The Court concluded that pursuant to RSA 304-C:67, I; RSA 304-C:130, III and the TASC operating agreement, TASC’s members may revoke a dissolution by majority vote. The Court declined to address the plaintiff’s argument that permitting a majority of TASC’s members to continue the company causes him substantial harm because the company is not obligated to pay him any consideration if he withdraws, because the plaintiff did not present it to the trial court in a motion for reconsideration.

James P. Harris (on the brief) and Christopher N. Cole (orally), of Manchester, for the plaintiff. James F. Laboe and Jeffrey C. Spear (on the joint brief, and Mr. Laboe, orally), of Concord, for defendant TASC Technical Services, LLC. Arnold Rosenblatt and Kathleen M. Mahan (on the joint brief), of Manchester, for defendant Patrick M. McDonough. Matthew J. McDonough,(by joint brief), pro se defendant.


CRIMINAL LAW

State of N.H. v. Jamie F. Letarte
No. 2014-0791
Dec. 9, 2016
Affirmed

  • Whether the court erred when it precluded defendant from introducing witness’s testimony to impeach the victim’s testimony on cross-examination under the Ellsworth exception to Rule 608(b)’s bar to extrinsic evidence and when it denied defendant’s motion to vacate and for a new trial

Defendant Jamie Letarte appeals his conviction on one count of aggravated felonious sexual assault and one count of felony indecent exposure, arguing that the trial court erred when it precluded him from introducing extrinsic evidence to impeach the victim’s testimony on a collateral matter during cross-examination by defense counsel (NH R. Ev. 608(b)) and when it denied his motion to vacate the verdict and schedule a new trial.

The extrinsic evidence consisted of a statement by the victim to a family member (the “witness”) that “[A]ll I have to do is say that [the witness] attempted to rape me” which statement victim made in response to the witness when he told her that she and her mother had to leave the home.

On cross-examination, the victim denied threatening to tell the police that the witness had sexually assaulted her. She also denied telling the witness that she would tell the police that he raped her. Defense counsel argued that this statement fell within the State v. Ellsworth (1998) exception which applies to allegedly false allegations of prior sexual assault or alternatively that the testimony was admissible under State v. Vandebogart (1994) to show that the victim was lying on the stand. The trial court disagreed and the witness was not called for the defense. Under the Ellsworth exception, the defendant must demonstrate that the allegations of prior sexual assaults were clearly and convincingly untrue. Here, it was allegedly a mere threat to make such an accusation, and there is no suggestion that she ever carried out the threat by actually accusing him of sexually assaulting her. Thus, the Court held that the Ellsworth exception does not apply.

Vandebogart concerns impeachment of a witness by contradiction, i.e., evidence that the target witness made a factual error in his testimony. Vandebogart is not a Rule 608(b) case. Here, the evidence the defendant sought to elicit from the victim falls squarely within the terms of Rule 608(b). When the victim denied making the prior threat, Rule 608(b)’s prohibition came into play and prohibited the defendant from introducing extrinsic evidence to contradict her testimony. Indeed, the Court continued, to permit the introduction of extrinsic evidence to contradict the victim’s testimony about a matter inquired into on cross-examination only because of its bearing on her general credibility for truthfulness, would render Rule 608(b) a nullity.

The Court declined to address the merits of the defendant’s argument that the trial court erred when it denied his motion to vacate the jury’s verdict and for a new trial because he did not sufficiently develop it for the Court’s review nor did he demonstrate that the trial court committed reversible error.

Joseph A. Foster, attorney general (Sean P. Gill, assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender (on the brief and orally), of Concord, for Defendant.


State of N.H. v. Seth Mazzaglia
No. 2014-0592
Dec. 13, 2016
Affirmed

  • Whether the trial court erred when it excluded evidence alleging that the victim had expressed to her prior partners an interest in bondage-related sexual activities

Defendant Seth Mazzaglia was convicted of two alternative-theory counts of first degree murder. The defense theory was that the victim died during a consensual sexual encounter with the defendant and his girlfriend where the girlfriend accidentally smothered the victim. Prior to trial, defendant filed a motion to introduce evidence alleging that the victim, a 19-year-old college student at the time, had previously expressed interest in bondage-related sexual activities to a prior sexual partner in May 2010, more than two years before her murder. Defense also sought to admit evidence alleging that she had expressed the same interest more recently to her then-current sexual partner. At the trial court hearing on the motion, defense counsel clarified that counsel sought only to introduce evidence of the victim’s alleged “openness” to bondage-related sexual activities and would not seek to introduce evidence alleging specific instances of her prior consensual sexual conduct.

The trial court denied defense’s motion, relying on NH Rule of Evidence 412. Rule 412 prohibits inquiry into the prior consensual activities of victims. In certain instances, however, a defendant must be given the opportunity to demonstrate that due process requires admission of a victim’s prior sexual conduct by showing that the evidence is relevant and that the probative value outweighs the prejudicial effect on the victim. The trial court did not find the evidence alleging the victim’s prior expressions of interest in bondage-related sexual activities relevant and ruled that, even if it did have some relevance, the probative value was outweighed by the prejudicial value to the victim and her family. Defendant was then convicted of both alternative theories of first-degree murder and sentenced on one. This appeal followed.

The NH Supreme Court agreed with the trial court that the fact that the victim allegedly previously expressed to prior partners an interest in bondage-related sexual activity does not make it more probable that she consented to her encounter with the defendant and his girlfriend. The Court also agreed with the trial court when it found that the state had not opened the door to the previously excluded evidence of the victim’s alleged interest in bondage-related sexual activities.

The “opening the door” doctrine comprises two doctrines governing the admissibility of evidence. The first doctrine is curative admissibility, which applies when inadmissible prejudicial evidence has been erroneously admitted and the opponent seeks to introduce testimony to counter the prejudice. The Court was concerned, however, only with the second doctrine, specific contradiction.

For the specific contradiction doctrine to apply, the initial evidence must have reasonably misled the fact-finder in some way. The rule prevents a party from successfully excluding evidence favorable to his opponent and then selectively introducing some of this evidence for his own advantage without allowing the opponent to place that evidence in proper context.

With the trial court in the best position to gauge the prejudicial impact of particular testimony, the Court will not upset the trial court’s ruling on whether the state opened the door to prejudicial rebuttal evidence, absent an unsustainable exercise of discretion. The defense argued that the state opened the door to evidence that she had expressed to prior partners an interest in such activities, by creating the misimpression that the victim was repelled by bondage-related sexual activities and therefore opening the door to evidence alleging that she was, in fact, interested in such activities.

The defense argued that the state opened the door in four instances. The Court reviewed all four instances and concluded that the trial court was not compelled to interpret the evidence as the defendant interprets it and that it was reasonable for the trial court to find that the state did not create such a misimpression. The Court upheld the trial court’s determination that the state did not open the door to the challenged evidence.

Joseph A. Foster, attorney general (Geoffrey W.R. Ward, assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender (on the brief and orally), of Concord, for the defendant.


FAMILY LAW

In the Matter of Jeffrey Oligny and Paula Oligny
No. 2015-0672
Dec. 23, 2016
Affirmed

  • Whether the trial court correctly interpreted the college contribution provision in the parties’ 2003 divorce decree when it determined that the petitioner’s offer to co-sign loans for his children fulfilled his obligation to equally contribute to any private and post-secondary educational expenses of their children

The interpretation of the language of a divorce decree is a question of law, reviewed by the Court de novo. Petitioner Jeffrey Oligny and respondent Paula Oligny divorced in 2003. One of the provisions in the decree required the parents to “equally contribute to any private and post[-]secondary educational expenses of their children, after the child has exhausted all forms of scholarships, loans, grants, etc.” (Support orders prior to 2004 may require parents to contribute to their children’s college education. See In the Matter of Donovan & Donovan, 2005.)

Before entering college, the children applied for and accepted all loans and grants for which they qualified. At the time of the trial court’s order, the respondent had incurred $36,525.52 in college costs for the couple’s two children. Petitioner offered to co-sign loans for his children for the balance due for their college educations, believing that such an offer fulfilled his obligation under the college contribution provision of the divorce decree. After a hearing, the trial court determined that the children had met their obligation and that the petitioner was responsible for 50 percent of the amount of loans, costs, interest, and fees that the respondent has incurred.

The Court held that the plain language of the college contribution provision requires the children to first exhaust all forms of loans and that the parents thereafter equally contribute to the remaining educational expenses. The Court found that a loan co-signed by someone else is not a form of loan that the child can exhaust as it cannot be acquired by the child alone. The Court held that co-signing is inconsistent with the college contribution provision because it puts the full burden of payment on the children while alleviating the parents’ contribution responsibility and affirmed the trial court’s order.

Doreen F. Connor and Matthew J. Delude (on the brief), of Manchester for the petitioner. Jacqueline C. Fitzgerald-Boyd (on the brief), of Plaistow, for the respondent.


In re N.K.
No. 2016-0269
Dec. 23, 2016
Affirmed

  • Whether a juvenile endangered the welfare of his brother (a child under the age of 18) by purposely violating a duty of care which he owed to his brother of whom he had custody when the juvenile was under the influence of marijuana and alcohol

A juvenile boy, NK, was left in charge of his 4-year-old brother by his mother while she worked a night shift as a nurse’s aide. When the mother returned home a few hours later, she observed several teenagers swiftly exiting the apartment; the residence was full of smoke and smelled like marijuana; and there were empty beer cans in the living room. She believed that the juvenile was drunk and probably high. She called police. The responding officers both testified that they observed the smell of freshly burnt marijuana; that the kitchen floor was sticky and wet with beer; there were beer cans in the sink, on the kitchen counters, on the floor and in the living room. They also found an empty 30-pack of beer, an empty bottle of pineapple vodka, and a bottle that smelled like marijuana, in a closet.

The officers attempted to speak with the juvenile but found him to be so impaired that they would not have left the juvenile alone in the apartment nor did they believe he was capable of caring for another person at his current level of impairment. He was arrested and adjudicated delinquent after a delinquency hearing during which the mother and two police officers testified.

On appeal, NK concedes he owed his brother a duty of care but only to keep him safe. The NH Supreme Court held he violated his duty of care based on the evidence of NK’s intoxication. The Court further disagreed with juvenile’s contention that the child be placed in actual risk of danger, not merely a speculative or hypothetical risk.

Having not previously interpreted the meaning of the term “endanger” under the statute at issue here (RSA 639:3, I), the Court looked to the dictionary definition as well as other case law and concluded that under RSA 639:3, I, evidence is sufficient to prove endangerment if it establishes that the offender engaged in behavior creating an actual and significant risk of injury to a child’s welfare.

The juvenile rendered himself incapable of caring for his brother by becoming impaired. By rendering himself incapable of providing care to the child, he effectively abandoned the child. Additionally, the Court concluded that the danger in this case was not merely speculation or hypothetical, because the juvenile’s brother could have ingested alcohol within his reach or slipped on the floor wet with beer and covered with ashes and beer cans. The Court held that the record contained sufficient evidence for a rational trier of fact to have concluded that the juvenile knowingly endangered the welfare of a child under 18 years of age and affirmed.

Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State. Christine C. List, assistant appellate defender (on the brief and orally), of Concord, for the juvenile.


MUNICIPAL LAW

City of Rochester v. Marcel A. Payeur, Inc. & a.
No. 2016-0212
Dec. 13, 2016
Affirmed and remanded

  • Whether the doctrine of nullum tempus applies to municipalities to bar the application of statutes of limitation[s] to claims brought by a municipality and whether the doctrine of nullum tempus bars the application of RSA 508:4 to the city’s contract claims

In 1985, the City of Rochester entered into a contract with AECOM to design the Rochester Hill Water Storage Tank. AECOM oversaw the construction of the Tank by Chicago Bridge & Iron (CB&I). CB&I completed the tank in 1985 and it was placed into service that same year.

In 2009, the Rochester contracted defendant Marcel A. Payeur, Inc. to service and modify the tank. In 2011, the tank developed a leak and upon inspection, the city discovered that Payeur had failed to properly construct the modifications in accordance with the design. The city sued Payeur in November 2012, alleging breach of contract, breach of warranty, negligence, and unjust enrichment.

In April 2014, the city named CB&I and AECOM, inter alia, as additional defendants, alleging that in 1985 CBI had failed to properly construct the tank in accordance with AECOM’s design, and AECOM had failed to adequately monitor CB&I.

CB&I and AECOM moved to dismiss the city’s claims against them, arguing that the claims were time-barred by RSA 508:4. The city argued that the doctrine of nullum tempus occurrit regi (“time does not run against the king”) precluded the statute of limitations from running against the city. The trial court granted CB&I’s and AECOM’s motions to dismiss. This interlocutory appeal followed.

The doctrine of nullum tempus is a common law rule excepting the sovereign from general limitations periods. The historical justification for the doctrine is that the king (and modern day sovereigns) cannot be expected to be as vigilant as individuals are in preserving their rights as the sovereigns are limited to acting through agents such as state officials, who are fully occupied with official duties. The doctrine is thought to further the public policy of preserving the public rights, revenues and property from injury and loss by the negligence of public officers. While a recognized doctrine of law in New Hampshire, the Court has not previously determined whether nullum tempus applies to contract claims asserted by municipalities.

The Court declined the city’s request to apply the doctrine of nullum tempus to its contract claims against the defendant, because to do so is not supported by the public policy underlying the doctrine and undermines the public policy underlying statutes of limitations. Municipalities are aware of the contracts into which they enter and thus such contractual undertakings are not likely to lead to unknown violations of public rights (contrasting contract claims to claims of adverse possession or enforcement actions to recover fines or penalties for violations of state statutes, as governmental agents are not always able to detect encroachment of property rights or to discover the existence of violations of statutes or ordinances.) A municipal corporation is bound by all contracts it enters into in the same manner as a private corporation or an individual. Further, municipalities cannot raise sovereign immunity as a defense to contract claims thus demonstrating that when a municipality does enter into a contract, it is acting as does a private party and not as a sovereign.

The statute of limitations governing this case bars contract claims after six years, and the city did not bring its claims against AECOM and CB&I until 29 years after the expiration of the limitations period. To allow the city to bring its contract claims would unfairly subject the defendants to the bars against which statutes of limitations were designed to protect. The Court thus held that nullum tempus does not bar the application of RSA 508:4 to the City’s contract claims and it affirmed the trial court’s grant of the defendants’ motions to dismiss.

Thomas J. Pappas (on the brief and orally), Matthew J. Delude, and Adam R. Mordecai (on the brief), of Manchester, for the plaintiff. Kenneth E. Rubinstein (on the brief and orally) and Nathan R. Fennessy (on the brief), of Concord, for defendant Chicago Bridge & Iron n/k/a CB&I, Inc. Jennifer L. Parent (on the brief and orally) and Nicholas F. Casolaro (on the brief), of Manchester, for defendant Whitman & Howard n/k/a AECOM Technical Services, Inc. Ralph N. Suozzo, of Manchester (filed no brief) for defendant Marcel A. Payeur, Inc. Peter S. Cowan (filed no brief), of Manchester, for defendant Wright-Pierce. Richard C. Gagliuso (on the brief,) of Merrimack, for Associated Builders and Contractors, New Hampshire/Vermont Chapter, as amicus curiae.


PROPERTY LAW

Robert Jesurum v. WBTSCC Limited Partnership & a.
No. 2015-0583
Dec. 9, 2016
Affirmed in part and reversed in part

  • Whether a prescriptive easement was established when public’s use of Sanders Point was adverse, extensive, uninterrupted and long-standing

Defendants WBTSCC Limited Partnership and William H. Binnie, trustee of the Harrison Irrevocable Trust appeal orders of the NH Superior Court concluding that members of the public, including the plaintiff, Robert Jesurum had acquired a prescriptive easement over a portion of property owned or controlled by the defendants in the Town of Rye; determining the scope of the easement; and awarding attorney’s fees to the plaintiff.

Plaintiff has been a resident of Rye since 1990. Defendants own property in Rye on Wentworth Road, most of which is used as a golf course. There is a small area on the northeastern corner of the defendants’ property known as Sanders Point. Wentworth Road abuts the property’s northern border. To the southeast, Sanders Point connects to Little Harbor Beach, an inlet to the Atlantic Ocean via a five-feet-wide sandy walking path.

Members of the public parked at Sanders Point to access the adjacent Little Harbor Beach using the sandy path since the 1950s, usually to dig for worms. During the 1970s and 1980s, the public regularly parked their vehicles at Sanders Point to access the beach to walk their dogs, dig for worms, observe birds and windsurf. Usage of Sanders Point increased in the 1990s. Plaintiff stated that he rarely saw Sanders Point devoid of people.

In 1996 or 1997, golf course personnel stored materials on the gravel area for an irrigation project. In 2004, the golf course used Sanders Point when they rebuilt a golf course pump house. In 2007, the golf course again used Sanders Point when they cleaned up debris caused by a storm. There was no evidence that the public’s use was interrupted by any of these projects. The public never sought or received express permission to use the gravel area or to access the beach.

In October 2012, the defendants blocked off Sanders Point from public access by installing boulders, bushes, and a fence between Sanders Point and Wentworth Road. Plaintiff brought this action in January 2013, seeking a declaratory judgment that plaintiff and the public have the right to a prescriptive easement over Sanders Point for parking and to access Little Harbor Beach. The trial court ruled that the public did have a prescriptive easement over Sanders Point, but initially did not determine the scope of the easement.

After a hearing on that issue in June 2015, the court ruled that the public was entitled to use Sanders Point to park and to access Little Harbor Beach. The plaintiff was ultimately awarded attorneys’ fees by the trial court as well. This appeal followed.

To establish a prescriptive easement, the plaintiff must prove by a balance of probabilities 20 years’ of adverse, continuous, uninterrupted use of the land claimed in such a manner as to give notice to the record owner that an adverse claim was being made to it. The nature of the use must have been such as to show that the owner knew that the right was being exercised without regard to the owner’s consent.

The Court found the facts of use by the public from the 1950s until 2012 supports the trial court’s conclusion that the public’s nearly exclusive use of Sanders Point was adverse, extensive and long-standing. The evidence also showed that from the 1950s to 2012, the public used Sanders Point openly and without regard to permission of the owners of the property. The few times the defendants used Sanders Point for construction projects did not interrupt the public’s use of Sanders Point. The Court also concluded that the trial court did not err in its conclusions as to the scope of the easement.

The Court did reverse the trial court’s award of attorneys’ fees to the plaintiff. New Hampshire generally follows the American Rule that parties pay their own attorneys’ fees unless there is an established exception. One such judicially-created exception is the substantial benefit theory, which allows an award of attorneys’ fees to the prevailing party where the action conferred a substantial benefit on the public as well as the plaintiff. But in this case, the parties are private litigants, and the court generally does not grant fees against a private litigant absent a showing of bad faith. Here the defendant, a private litigant, acted in good faith to defend what it believes are its property rights. The Court was not persuaded that rewarding one party’s advancement of the public interest by shifting fees to opposing parties who have acted in good faith to defend their property rights so clearly represents sound public policy that it would be proper for the court to adopt such a rule by judicial decision.

Paul McEachern (on the brief) and Jacob Marvelley (on the brief and orally), of Portsmouth, for the plaintiff. Benjaimn T. King (on the brief and orally), of Concord, for defendants. Joseph A. Foster, attorney general (Rebecca L. Woodard, senior assistant attorney general (filed no brief), for the State. Micheal L. Donovan (filed no brief), of Concord, for the Town of Rye.


RIGHT TO KNOW LAW

Thomas Reid v. NH Attorney General
No. 2015-0499
Dec. 23, 2016
Vacated and remanded

  • Whether certain records of an investigation by the Attorney General into alleged wrongdoing by former Rockingham County Attorney General James reams were protected from disclosure pursuant to the Right to Know Law codified at RSA 91-A

In November 2013, the New Hampshire Attorney General’s Office, which is the defendant, suspended the criminal law enforcement authority of Rockingham County Attorney James Reams and placed the plaintiff, former Rockingham County deputy county attorney Thomas Reid on paid suspension.

The AG’s office, the U.S. Attorney’s Office and the FBI conducted a criminal investigation of Reams that lasted until March 2014. Plaintiff resigned his position as deputy county attorney on Jan. 17, 2014. In April 2014, Plaintiff submitted a request for disclosure of the defendant’s records concerning the investigation of Reams. The Attorney General’s Office submitted nearly 1,300 pages of documents, some with redacted portions. The trial court held that the redactions at issue fell within the purview of RSA 91-A:5, IV, which provides in part that records relating to internal personnel practices and other files whose disclosure would constitute an invasion of privacy are exempt from disclosure under the Right to Know Law. The plaintiff argues that the records of the defendant’s investigation of Reams did not pertain to internal personnel practices because the defendant was not the county attorney’s employer.

The Court agreed with plaintiff’s interpretation and, after review of case law, Union Leader Corp. v. Fenniman (1993) and Hounsell v. North Conway Water Precinct (2006), vacated and remanded for further proceedings. Relying on those two cases, the Court clarified that an investigation into employee misconduct as a personnel practice must take place within the limits of an employment relationship.

The plaintiff argued that the defendant was not Reams’ employer. The Court, in an apparent case of first impression and after a lengthy analysis, agreed, concluding that the relationship between the Attorney General and a county attorney lacks the usual attributes of an employer-employee relationship, such as the power to set a salary, hire or fire and that the attorney general’s supervisory authority over criminal law enforcement by the county attorney is not sufficient to warrant treating the defendant as Reams’ employer for purposes of the internal personnel practices exemption.

For the benefit of the parties and the court on remand, the Court held that the determination of whether material is subject to the exemption for personnel files whose disclosure would constitute an invasion of privacy, RSA 91-A:5, IV requires a two-part analysis of whether the material can be considered a “personnel file” or part of one and whether disclosure of the material would constitute an invasion of privacy.

The Court further reviewed the well-established three-step analysis set forth in Lambert v. Belknap County Convention (2008) that the trial court should follow to determine whether disclosure of public records constitutes an invasion of privacy. Finally, the Court stated it was confident that the test achieves the proper balancing of employees’ interests in privacy and the state’s interest in nondisclosure against the public’s interest in disclosure. This, the Court held, adequately addresses any concerns that the disclosure of records underlying or arising from internal personnel investigations would deter the reporting of misconduct by public employees or participation in such investigations for fear of public embarrassment, humiliation or retaliation. The Court thus vacated and remanded the case.

Thomas Reid (on the brief and orally), of Concord, for the plaintiff. Joseph A. Foster, attorney general (Francis C. Fredericks, assistant attorney general and Nancy Smith, senior assistant attorney general, on the brief, and Mr. Fredericks, orally), for the defendant.


TAX LAW

The Bishop of the Protestant Episcopal Diocese in New Hampshire, a Corporation Sole, D/B/A St. George’s Episcopal Church v. Town of Durham
No. 2015-0671
Dec. 9, 2016
Affirmed

  • Whether church’s parking spots that are leased for to University of New Hampshire students are taxable

Plaintiff St. George’s Episcopal Church appeals an order of the Superior Court denying its summary judgment motion and granting the summary judgment motion of the defendant, Town of Durham, based upon a finding that 24 spaces in the church’s parking lot that are leased to University of New Hampshire (UNH) students are taxable.

The church has been leasing parking spaces to UNH students since 1998, charging $300 per space per semester. Under the lease agreement, students are permitted to park in the lot at all times except Sundays, from 7:30 a.m. to 1 p.m.; the first Saturday in December; the Saturday after Labor Day; days when the church hosts weddings, funerals, and other events; and days when it snows or the parking lot requires repair.

Until 2013, the church received a religious tax exemption under RSA 72:23, III, for its entire parking lot. However, in early 2013, the town learned that the church leased spaces to UNH students, and after making a determination that the leased parking spaces were no longer exempt from taxation, issued the church a tax bill.

The church appealed the town’s tax assessment to the trial court. The law sets forth certain exemptions from real estate and personal property taxation for religious and other organizations. Paragraph III exempts from taxation houses of public worship, buildings and the lands appertaining to them owned, used and occupied directly for religious purposes.

The only issue here for the Court’s review is whether the spaces leased to UNH students are “used and occupied directly” for religious purposes and therefore tax-exempt. The trial court found that the leased spaces are used and occupied directly by the UNH students for all but about six hours each week and that the church’s use of the leased spaces is too slight and is insufficiently significant to warrant an exemption. The Court agreed, finding that the church’s use of the leased spaces for about six hours each week constitutes slight, negligible or insignificant use of the spaces for the church’s religious purposes and affirmed the trial court’s grant of summary judgment to the town.

William L. Chapman (on the brief and orally), of Concord, for the plaintiff. Laura Spector-Morgan (on the brief and orally), of Laconia, for the defendant.

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