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Bar News - October 18, 2017

Supreme Court At-a-Glance


September 2017

Constitutional Law

State of New Hampshire v. Gibson Appeal from Merrimack County
No. 2016-0507 Sept. 21, 2017
Reversed and Remanded.

  • Whether the trial court erred in quashing a subpoena to compel a reporter’s testimony regarding a story published from a non-confidential source

The defendant allegedly disseminated a false “press release” via email during the 2015 special election for state representative. A reporter who had received the email and its attachment, interviewed sources regarding the actual status of the race, and wrote an article for the Concord Monitor. The reporter then searched for the author’s contact information. Upon reaching the defendant, interviewed him and wrote a second article detailing the content of his interview with the defendant. The state subpoenaed the reporter to testify to the “confessions” the defendant made during the interview. The reporter moved to quash the subpoena arguing that it violated Part I, Article 22 of the state constitution and the First Amendment to the federal constitution.

The NH Supreme Court recognized a qualified privilege of reporters in both civil and criminal cases and reviewed it under a three-prong test, but held that the state constitution’s newsgathering privilege did not extend to non-confidential, published materials from identified sources. The Court disagreed with the trial court’s finding that cross-examination of the reporter would require inquiry into unpublished information, the reporter’s mental impression, and the reporter’s investigation, as everything the reporter knew had been part of his published articles. Moreover, if the privilege was raised on cross-examination by the defendant, it would be the defendant’s burden to overcome the privilege, not the state’s burden.

Accordingly, the Court remanded for determinations by the trial court of the unreached arguments regarding the First Amendment of the federal constitution.

Brennan, Lenehan, Iacopino & Hickey of Manchester (Michael J. Iacopino and Jenna M. Bergeron on the brief), for the defendant.

Orr Reno of Concord (William L. Chapman on the brief and orally) for the reporter, Nicholas Reid.

Criminal Law

State v. Jeremy M. Fiske
An appeal from Rockingham County
No. 2016-0137 Sept. 21, 2017

  • Questions regarding in camera review of the victim’s counseling records; defendant’s emailed statements; statute of limitations; and plain error in jury instructions

The defendant sought appeal after being convicted of eight counts of aggravated felonious sexual assault and one count of possession of child pornography involving his step-daughter.

On appeal, the NH Supreme Court applied an unsustainable exercise of discretion standard of review and State v. Gagne (1992), and held that “to trigger an in camera review of privileged or confidential records, the defendant must establish a reasonable probability that the records contain information material and relevant to his defense.” Such factual basis must be independently obtained. Here, the state did not dispute that the victim did not disclose the assaults to her counselor. Accordingly, the defendant was already aware of the information he sought and was in a possession to seek the requisite permission to cross-examine the victim about the non-disclosures. Therefore, the denial of in camera review was sustained.

The Court also rejected the defendant’s NH R. Ev. 403 argument regarding email statements he made about his “perversion addiction.” Reviewing the trial court’s evidentiary ruling under an unsustainable exercise of discretion standard, the Court found the admission relevant, as bearing on the sexual interest the defendant had in his stepdaughter, which was directly related to the particular charges and the credibility of the victim’s testimony. The Court disagreed that the evidence was inflammatory, as it did not pose an undue high risk of unfair prejudice, particularly when comparing it to other evidence presented at trial.

The Court further found no error with the trial court’s denial of defendant’s motions to dismiss the child pornography charge. The Court found that a rational trier of facts could have found that, beyond a reasonable doubt, the defendant knowingly possessed the photograph within the statutory period. The Court looked at the totality of the evidence presented, including that the date of the 2007 “modification” was in the midst of the active abuse, that there was evidence that the defendant’s attraction to the victim continued, and that the defendant ran a “File Shredder” program in 2014 just before his arrest.

The Court interpreted NH RSA 649-A, III’s definition of “sexually explicit conduct” de novo and held that the definition of “simulated sexual intercourse” would include photographs of the victim with a dildo in her mouth and therefore constituted child pornography.

Lastly, the Court found that the defendant did not meet his burden of demonstrating that the error in jury instructions “affect[ed his] substantial rights” and “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” The defendant argued that the instruction failed to properly indicate that he could be sentenced for both alternatives (the underlying charges and the pattern charges), and did not mention the “likelihood or duration of incarceration or probation.” Where the jury was also instructed that it was “not allowed to consider the possible punishment,” the defendant’s assertions that the instruction caused the jurors to “minimize[] the potential penalties” was “conjecture.”

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

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

Thomas Bernard, senior assistant appellant defender of Concord, on the brief and orally, for the defendant.

State v. Andrew Robbins
An appeal from Strafford County
No. 2016-0235 Sept. 21, 2017

  • Whether the arresting officer had unlawfully expanded the scope of the traffic stop into an investigation in violation of Part I, Article 9 of the New Hampshire constitution

On appeal following conviction, the defendant argued that request for his name and birthdate, and warrant search constituted an unjustified expansion of the scope of the traffic stop. As such, the defendant argued that the search was unreasonable and in violation of Part I, Article 19 of the New Hampshire state constitution, rendering the evidence obtained inadmissible.

In reviewing these arguments, the Court agreed that a traffic stop results in a seizure of the driver and passengers of a vehicle and that the stop must be temporary, lasting no longer than necessitated by its purpose, and tailored in scope to “its underlying justification.” However, without ruling on whether New Hampshire should adopt a “bright line” rule that would always allow the police to request information on passengers during any traffic stop, the Court upheld the trial court’s finding that the request for identification and warrant check was justified because the officer had a reasonable, articulable suspicion of danger to his safety.

The facts and circumstances included the officer’s testimony that the hour was late, the driver and passengers were known to be gang members or appeared to be new gang members, and that this gang could be violent toward law enforcement. Accordingly, the suspicion of danger was justified, and based on New Hampshire law, “his actions in requesting identification and conducting warrant checks of the vehicles’ occupants unquestionably constitute[d] a proper means of addressing such concerns…”

The Court affirmed the trial court’s denial of defendant’s motion to dismiss.

Joseph A. Foster, attorney general, with Scott D. Chase, attorney, and Stephen D. Fuller,, assistant attorney general (on the brief) and Mr. Chase orally, for the New Hampshire Department of Transportation.

Christine C. List, assistant appellate defender of Concord (on the brief and orally), for defendant.

Employment Law

Daniel Barry v. New Hampshire Department of Health and Human Services
Appeal from Hillsborough-North
No. 2016-0398 Sept. 28, 2017

  • Whether the trial court erred in 1) failing to give findings of the Personnel Appeals Board collateral estoppel effect in the subsequent civil action for wrongful termination and 2) in admitting testimony of the defendant’s use-of-force expert

The plaintiff, a state employee, was fired after investigation into an alleged use of excessive force and for alleged failure to report the incident. After appeal to the Personnel Appeals Board (PAB), the PAB reinstated his employment, finding that he had not used excessive force under the circumstances and was not personally responsible for filing the report when he had ensured that someone else had.

He then filed a civil suit, claiming damages for wrongful termination, and arguing that the actual reasons for the termination was retaliation for his vocal opposition to certain policies and involvement in union activities. Following a jury verdict in favor of the defendant, the plaintiff appealed, arguing that the PAB’s findings should have been given collateral estoppel effect against the defendant, and that it was error to admit into evidence the defendant’s use-of-force expert’s testimony.

Upholding the verdict, the Court agreed that collateral estoppel effect was not warranted, though for different reasons. Unlike the trial court, the Court found that the use-of-force and reporting requirement issues in the two proceedings were identical, but that substantial procedural differences existed between the civil action and the earlier PAB hearing.

Noting Section 28 of the Restatement (Second) of Judgments (1982), the Court reiterated that “collateral estoppel should not apply when ‘a new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two court.”’ The Court found that the PAB hearing was “tailored to the prompt, inexpensive determination’” of the reasons for termination.

In contrast, after noting the variation in available remedies in each context, the varying time limitations in which evidence could be presented, that the rules of evidence didn’t apply in the PAB, and that the burden of production (though not persuasion) shifted to the defendant in the PAB hearing, the Court found that in the civil suit, the issues regarding the reasons for plaintiff’s termination were being litigated in the “context of a much larger claim” with distinguishable procedural elements. Accordingly, it was not proper to give the PAB findings collateral estoppel effect.

Further, the Court rejected the plaintiff’s arguments that the defendant’s use-of-force expert, who testified that the amount and nature of force used by the plaintiff did not comply with the defendant’s rules, did not meet NH R. Ev. 702’s standard for admissible expert testimony. The Court found that the evidence was probative on the issues, particularly whether the defendant’s reasons for termination were credible. The defendant’s expert did not offer opinions on the defendant’s motivations, but instead limited his opinions to the excessive and incompliant force used by the plaintiff.

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

Law Office of Leslie H. Johnson of Center Sandwich (Leslie H. Johnson on the brief), and Purcell Law Office of Portsmouth (Ellen Purcell on the brief and orally), for the plaintiff.

Joseph A. Foster, attorney general (Kenneth A. Sansone, assistant attorney general, and Lynmarie C. Cusack, senior assistant attorney general, on the brief, and Mr. Sansone orally), for the defendants.

Douglas, Leonard & Garvey, of Concord (Megan Douglass on the brief), for New Hampshire Chapter of the National Employment Lawyers Association, as amicus curiae.

Insurance Law

Massachusetts Bay Insurance Company v. American Healthcare Services Association
Appeal from Rockingham County
No. 2016-0390 Sept. 28, 2017
Affirmed in part, reversed in part, vacated in part, and remanded.

  • Whether the Healthcare Services Exclusion of GL coverage, the umbrella form, or the Abuse and Molestation and “Dishonest, Fraudulent, Malicious, Uninsurable Acts” exclusions of the umbrella forms barred coverage

The Court reviewed rulings with respect to coverage for Triage Staffing and Exeter Hospital for civil actions brought by patients who contracted Hepatitis C from an employee who was diverting prescription drug syringes for his own use, refilling them with saline, and returning them to the hospital’s medicine supply. Before beginning direct employment, the employee was placed as a temporary worker at the hospital, provided by Triage.

Examining the “healthcare professional services” exclusion of the general liability policy forms at issue, the Court found that the language unambiguously barred coverage without regard to whether or not Triage, the named insured, was rendering the healthcare professional services allegedly leading to the injuries. The Court held that coverage was excluded for the exact type of harm the plaintiffs alleged.

The Court rejected Triage’s argument that the exclusion did not apply because the counts against it were for negligent hiring, training, supervision, and retention, and not for medical negligence, and that the nature of the claims by which its liability was alleged should control the application of the exclusion. Applying a “but for” analysis, the Court noted that Triage could not be found liability for the alleged negligent hiring unless the plaintiffs proved a resulting harm – here, injury from healthcare services. The Court further rejected the argument that the exclusion, if interpreted without regard to whether or not Triage was rendering the medical services, would eviscerate the “separation of insureds’ clause” in the policy.

The Court declined to review Exeter’s argument that if coverage was excluded under the general liability form as falling within the health care services exclusion, coverage would be provided by the professional liability coverage forms as it was not preserved below.

The umbrella form – which stated that “additional insured coverage provided by this insurance will not be broader than coverage provided by the underlying insurance” – provided no greater coverage to an additional insured than afforded by the underlying coverage forms. Because coverage for Exeter was barred by the healthcare services exclusion, and the no-coverage ruling for Exeter under the professional liability form was unchallenged, the umbrella also provided no coverage to Exeter. To the contrary, Triage was the named insured and not subject to the additional insured limitation on broadening coverage. Therefore, the umbrella form could provide broader coverage, unless barred by the policies’ exclusions.

Focusing on the specific language of the “abuse and molestation” exclusion, the Court found it ambiguous and construed it in favor of the insured. Under the “dishonest, fraudulent, malicious, uninsurable acts” exclusion of the policies, the Court noted that it precluded coverage for certain acts committed by “any insured.” “Insured” was defined to include Triage’s employees for “acts within the scope of their employment” with Triage, or “while performing duties related to the conduct of” Triage’s business.

Though there can be circumstances in which an employee completely abandons his employment duties, here the employee continued to render patient care throughout the time he was diverting medication. During the time the employee was employed by Exeter, however, he would not meet the definition of “an insured” under the policy, and the exclusion would not apply. The Court held that Triage was entitled to coverage under the umbrella for exposures occurring during the later time periods.

The Court did not reach whether the acts constituted a single occurrence because the single occurrence limit in the policies equaled the total available coverage under those forms. The Court further noted that arguments about whether or not both policies applied and whether defendant Arch Specialty Insurance was responsible for Exeter’s defense costs were waived.

Preti, Flaherty, Beliveau, Pachios of Concord (William C. Saturley on the brief), and Hangley Aronchick Segal Pudlin & Schiller of Philadelphia (Ronald P. Schiller and Daniel J. Layden on the brief, and Mr. Schiller orally), for Arch Specialty Insurance Company.

Mallory & Friedman of Concord (Mark L. Mallory on the brief and orally), for Triage Staffing, Inc.

Sheehan Phinney Bass & Green of Manchester (James Q. Shirley and Megan C. Carrier on the brief, and Mr. Shirley orally), for Exeter Hospital, Inc.

Property Law-Easements

Carolyn J. Carlson, Trustee of the Carolyn J. Carlson Living Trust v. Latvian Lutheran Exile Church of Boston and Vicinity Patrons, Inc.
Appeal from Merrimack County
No. 2016-0251 Sept. 21, 2017
Affirmed in part; vacation in part; and remanded.

  • Whether the holder of an easement, a nonpossessory interest, has standing under RSA 491:22, or otherwise, to bring a declaratory judgement action or petition to quiet title

This dispute arose between and among neighboring landowners all claiming to have rights to a private road that allowed access to the several lots and to the water.

Carolyn Carlson and neighbor Shirley Kingsbury petitioned for quiet title of the driveway, seeking a declaration that the defendant had no rights to use the driveway either because it had no deeded rights or because they had been ousted. The defendant counter-claimed for a declaration that it had a deeded easement, or had prescriptive or equitable rights to use the roadway. Kingsbury sold her lot and withdrew from the litigation, making the sale subject to the pending case. The buyers did not participate in the litigation and were not joined.

The trial court found that the defendant did not have an easement to use the private road for water access and denied the plaintiff’s petition to quiet title to the roadway, finding that the owner of the burdened lot was a necessary party under RSA 498:5-a, who was no longer a part of the litigation. The defendant and plaintiff both appealed.

On appeal, the Court interpreted RSA 491:22 de novo and case law, holding that for an easement holder to avail herself of a declaratory judgement action under statute or in common law, the plaintiff had to demonstrate that “some right” of hers had “been impaired or prejudiced” by showing that the facts of the dispute were ripe and involved a concrete dispute implicating “the legal relation of parties having adverse interests.”

While the statute permits an action to be brought before an actual interference with rights occurs, the rights still must be adverse. The Court rejected the minority view, instead holding that because an easement is non-possessory, the plaintiff did not have standing to challenge trespass or seek ejectment of the defendant, so long as the trespass didn’t interfere with her exercise of her rights of use.

Without reaching the plaintiff’s arguments regarding whether the trial court erred in dismissing plaintiff’s petition for failure to have all necessary parties before the court, the Court raised standing sua sponte as a question of subject matter jurisdiction. Finding that RSA 498:5-a, governing quiet title actions, also required that the interests in question be adverse, the Court held that the plaintiff also lacked standing regarding her petition to quiet title.

As with the declaratory judgement action, the plaintiff did not demonstrate that the defendant’s use of the easement interfered with her rights of use, and no one was challenging the plaintiff’s easement rights to use the roadway.

Accordingly, the Court affirmed the dismissal of the plaintiff’s quiet title petition on the alternative ground that the plaintiff lacked standing, and vacated the trial court’s declaratory judgment with instructions that it be dismissed.

Tarbell & Brodich of Concord (David E. LeFevre on the brief and orally), for plaintiff Carolyn J. Carlson, Trustee of the Carolyn J. Carlson Living Trust.

Orr & Reno of Concord (Lisa Snow Wade on the brief and orally), for the defendant.

Property Law-Leases

Wayne Ross, Trustee of The Wayne Ross Revocable Trust v. Donald W. Ross
Appeal from Merrimack County
No. 2016-0370
Sept. 28, 2017
Vacated and remanded

  • Whether the trial court erred in finding that the parties entered into a lifetime lease and that the defendants could not be evicted

On appeal, the plaintiffs disputed the trial court’s finding that they entered a lifetime lease with the defendant. The NH Supreme Court found that the plaintiffs’ post-trial pleading conceded only that the written document met the statute of frauds with respect to a yearly lease arrangement.

By filing for reconsideration after the trial court found the lease was for the plaintiffs’ lifetimes, the plaintiffs properly preserved for appellate review the issues regarding the statute of fraud requirements for a lifetime lease. Likewise, the Court found that the defendants’ argument about part performance on the lease was not waived because it was raised in opposition to plaintiffs’ motion to reconsider and the trial court was not “depriv[ed]… of an opportunity to address it.”

The Court also found that the plaintiffs’ argument that the writing failed to satisfy the statute of frauds for a perpetual lease was not inconsistent with their original theory that the writing both satisfied the statute of frauds with respect to a yearly lease. Accordingly, they were not judicially estopped from raising the statute of frauds argument with respect to a perpetual lease.

The Court next examined RSA 506:1 regarding issues of parol evidence, essential terms, oral leases, and leasehold transfer agreements. Adopting the view of multiple other jurisdictions, the Court held that “the time for performance of a lease for a term of years is essential because ‘the duration of the leasehold interest is central to that undertaking’” and thus must in a writing to satisfy the statute of frauds.

Though the Court agreed with the defendants that “reasonable certainty as to an essential term can suffice to satisfy the statute of frauds[,]” the Court held that the terminology “per year” qualifying the rental amount, was not sufficient to provide reasonable certainty of a specific term of years. Therefore, the essential term of duration was not stated, and was also not “determinable” by the contents of the writing, rendering it insufficient to satisfy the statute of frauds.

The Court next considered the defendants’ arguments that equitable considerations, namely the doctrine of part performance, took the lease outside the statute of frauds because “application of the statute would result in fraud or irreparable injury” to the defendants. Additionally, the Court reviewed the record for support for plaintiff’s argument that the leased farm was a “restricted property” within the meaning of RSA 540:2, II (d) or (e). The Court remanded them for determinations by the trial court.

Ramsdell Law Firm of Concord (Michael D. Ramsdell on the brief and orally) for the plaintiffs.

Preti, Flaherty, Beliveau, Pachios of Concord (Peter G. Callaghan on the brief and orally), for the defendants.

Right-to-Know Law

David K. Taylor v School Administrative Unit #55
Appeal from Rockingham County
No. 2016-0702
Sept. 21, 2017

  • Whether SAU 55’s refusal to provide notes from a nonpublic decision of the School Board and requirement that requested public records be produced on thumb drive or hard copy and not emailed complied with RSA 91-A

Plaintiff David Taylor sued SAU 55, arguing that the school board had violated RSA 91-A, following which the board acknowledged that RSA 91-A:3, III required that voting regarding nonpublic sessions take place in public session and re-voted in compliance with the statute. Because the plaintiff was required to institute the lawsuit to secure the Board’s compliance with proper voting procedure, the trial court ordered SAU 55 to pay plaintiff’s litigation costs, but the trial court decided against the plaintiff on his other arguments.

The Court held that to satisfy RSA 91-A and Part I, Article 8 of the New Hampshire constitution, SAU 55’s policies could not “unreasonably restrict” the public’s right of access to records and governmental proceedings. Reviewing the issues “with a view to providing the utmost information” and noting that the burden on the public entity seeking non-disclosure is heavy, the Court ruled that RSA 91-A permitted SAU 55 to require the requested electronic form of the public documents to be copied to a thumb drive and not emailed, as the records were not maintained in email form.

The statute does not require any particular electronic form, and SAU 55 had legitimate concerns for not responding to Right-to-Know requests via email – cybersecurity concerns and formally documenting responses. The “delivery” of the records for copying or inspection that is required free of charge involves the gathering of the records. Providing the records in the requested electronic format constitutes “copying” under the statute, not delivery or inspection.

That the thumb drive procedure required plaintiff to go to SAU 55’s office did not constitute a violation of the statute as the availability of inspection and copying is permitted to be confined to SAU 55’s offices and hours (reasonable hours or business hours). Therefore, requiring the plaintiff to provide, or purchase at actual cost, a thumb drive for such electronic copies was compliant with the statute. Though the plaintiff also argued that the PDF version, which lacked metadata, was less useful than an emailed version, and that copies should be free of charge, according the legislative history of the 2016 amendment of RSA 91-A:4, IV, the Court found these to be waived.

Additionally, the Court found that the trial court’s denial of the plaintiff’s motion to reconsider was not an unsustainable exercise of discretion.

David K. Taylor, self-represented party, by brief.

Drummond Woodsum & MacMahon of Portsmouth (Demetrio F. Aspiras and James O’Shaughnessy on the brief), for the defendant.

Tort Law

Jay Kurowski f/n/f Christopher Kurowski v Town of Chester
Appeal from Rockingham County
No. 2016-0406
Sept. 21, 2017

  • Whether the town was entitled to immunity under RSA 212:34 and RSA 508:14

The plaintiff’s son was injured in 2015 near the shore of a public, town-owned pond and recreational area while attempting to slap the feet of a person swinging from a rope affixed to a tree on the shore.

Plaintiff alleged that the Town of Chester was liable for his son’s injuries based on two theories – negligent and willful, and intentional tort – arguing that the town, though aware of the hazard since 2012, failed to warn or remedy the condition. The trial court dismissed plaintiff’s case based on RSA 212:34 and RSA 508:14, the recreational use immunity statutes. The plaintiff appealed.

The Court assumed that both statutes could apply to a municipality, as neither party had challenged this application. Under RSA 212:34, the Court held that the child’s activity at the pond qualified as an “outdoor recreational activity” within the meaning of the statute. The Court also found that the willful or intentional exceptions to immunity did not apply and held that the trial court did not err in denying plaintiff’s request that he be permitted to conduct discovery before the court ruled on the defendant’s motion to dismiss.

The Court rejected the plaintiff’s arguments and instead found that “outdoor recreational activity” can include use of man-made features, whether or not supplied by the defendant and whether or not the activities were authorized or hazardous. Further, the Court found that the activities in question – slapping the feet of a person swinging into the water – were similar to the listed statutory activity of “water sport.”

The Court did not expressly adopt the Ninth Circuit’s three-prong definition of “willful misconduct” or restrict the definition of “willful” in RSA 212:34 to that used in prior New Hampshire jurisprudence – namely, “a voluntary act committed with an intent to cause its results.” Instead, it concluded that the plaintiff’s allegations failed to meet either test. More particularly, the plaintiff could not establish the second prong of the Ninth Circuit test: that the town had “actual or constructive knowledge that injury [was] a probable, as opposed to possible, result of the danger[.]”

The complaint alleged that the town had knowledge that the swing was a hazard and failed to warn about or rectify the hazard, but these allegations alone do not sufficiently allege that the town knew or should have known that injury would probably result, nor establish intentional conduct. Instead, these allegations established a claim in negligence at best.

Lastly, the Court found that “discovery is not intended to provide the plaintiff with the opportunity to obtain additional information that might cure deficiencies” in a complaint that fails as a matter of law to survive a motion to dismiss. The Court found the plaintiff’s other arguments were waived, that there was no need to reach RSA 508 immunity, and affirmed the trial court’s dismissal.

Solomon Professional Association of Londonderry (Peter M. Solomon on the brief and orally) for the plaintiff.

Devine Millimet & Branch of Manchester (Donald L. Smith on the brief and orally), for the defendant.

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