Justia Government & Administrative Law Opinion SummariesArticles Posted in New Hampshire Supreme Court
Hardy v. Chester Arms, LLC
In a case before the Supreme Court of New Hampshire, the plaintiffs, two police officers injured in a shooting, filed a suit against Chester Arms, LLC (the seller of the firearm used in the shooting), and the New Hampshire Department of Safety (DOS) (which conducted the background check for the sale of the firearm). The suit accused Chester Arms of negligent entrustment and DOS of negligent entrustment and negligence per se. The trial court granted summary judgment in favor of both defendants on the basis of immunity under state law. The court of appeals affirmed the lower court's decision.The court of appeals found that the state law barring lawsuits against firearms manufacturers and sellers for damages resulting from the criminal or unlawful use of their products by a third party was constitutional and not preempted by federal law. The court found that the law was designed to safeguard citizens' fundamental right to bear arms by limiting suits against the firearms industry, thereby protecting its solvency and ensuring law-abiding citizens have access to firearms. The court also found that the law did not violate the plaintiffs' constitutional right to equal protection or right to a remedy.Regarding the suit against DOS, the court found that DOS had not been negligent in its background check as the shooter was not disqualified from owning a firearm at the relevant time under federal law. Therefore, the court concluded that any alleged error in the trial court's immunity analysis was harmless as DOS was entitled to judgment as a matter of law. View "Hardy v. Chester Arms, LLC" on Justia Law
Appeal of New Hampshire Department of Environmental Services; Appeal of North Country Environmental Services, Inc.
The Supreme Court of New Hampshire reversed a decision by the New Hampshire Waste Management Council (Council) that had found the New Hampshire Department of Environmental Services (DES) acted unlawfully in issuing a permit to North Country Environmental Services, Inc. (NCES) for the expansion of a landfill. The Council had ruled in favor of the Conservation Law Foundation (CLF), which argued the permit did not meet the "capacity need" as required by law. The Supreme Court ruled that the Council erred in its interpretation of "capacity need" under RSA 149-M:11, V(d) and concluded that DES has the discretion to determine whether a capacity need exists. The Court also found that the CLF had standing to appeal the permit to the Council. View "Appeal of New Hampshire Department of Environmental Services; Appeal of North Country Environmental Services, Inc." on Justia Law
American Civil Liberties Union of New Hampshire v. New Hampshire Division of State Police
In a dispute between the American Civil Liberties Union of New Hampshire (ACLU) and the New Hampshire Division of State Police (the Division), the Supreme Court of New Hampshire affirmed a lower court's decision permitting the ACLU's request for access to public records about a former state trooper under the Right-to-Know Law. The Division had argued that these records were exempt from disclosure under RSA 105:13-b and their release would constitute an invasion of privacy. The ACLU had requested reports, investigatory files, personnel, and disciplinary records related to adverse employment action against the former trooper.The Supreme Court ruled that the exemption cited by the Division, RSA 105:13-b, which pertains to the confidentiality of police personnel files, does not categorically prohibit disclosure of such records under the Right-to-Know Law. The court's interpretation of RSA 105:13-b is that it operates within the context of a specific criminal trial and does not prohibit disclosure in all instances or further regulate the information. Consequently, the Division's argument that the law establishes a scheme in which police personnel records may not be disclosed outside narrow exceptions was rejected.The court also found no absurdity in the coexistence of different statutory frameworks for seeking information in a police personnel file for different purposes. It ruled that the material disclosed under the Right-to-Know Law and RSA 105:13-b is tailored to the purposes of the respective laws, reflecting the different purposes served by each statutory scheme. View "American Civil Liberties Union of New Hampshire v. New Hampshire Division of State Police" on Justia Law
Boucher v. Town of Moultonborough
Plaintiff Jason Boucher appealed a superior court order granting defendant Town of Moultonborough's (Town) motion to dismiss. He contended that: (1) the court erred in finding that he failed to exhaust administrative remedies under RSA 41:48 (Supp. 2022); and (2) he has stated a claim for which relief may be granted. Plaintiff served as a police officer for the Town for nineteen years, mostly in a full-time capacity. At the time he filed his complaint, he most recently held the rank of sergeant. Up until the final four months of his employment, no formal disciplinary actions had been taken against him while employed by the Town’s police department. Due to his past involvement in assisting local officers to form a union, and his previous support of a candidate for police chief that the Board of Selectmen (Board) opposed, plaintiff believed the Board did not support him. In early 2020, the police chief retired and was replaced by an interim police manager “who was under the direct control of the [Board].” Shortly thereafter, plaintiff became “the subject of serial internal investigations orchestrated by” the interim manager and the lower-ranking officer “for simply attempting to conduct the ordinary business of a police Sergeant.” In total, plaintiff was subjected to four investigations over six weeks. According to plaintiff, the interim manager’s conduct “was very clearly aimed at undermining and isolating him.” In May 2021, plaintiff filed suit alleging one count of “Constructive Termination in Violation of RSA 41:48.” The court reasoned that if plaintiff “considers himself a terminated officer in violation of RSA 41:48, even if only constructively, it logically follows that he is required to follow the procedures contained within RSA 41:48.” The Town represented at oral argument that there were several processes plaintiff could have followed to attempt exhaustion, including requesting a hearing before the Board, articulating the issue to the Board, or “engaging” with the Board informally. Yet, the New Hampshire Supreme Court found none of these processes were set forth in the plain language of RSA 41:48. Accordingly, the Court found the trial court erred in its dismissal of plaintiff's case, and reversed and remanded for further proceedings. View "Boucher v. Town of Moultonborough" on Justia Law
Appeal of Liberty Utilities (EnergyNorth Natural Gas) Corp., D/B/A Liberty
Petitioner Liberty Utilities (EnergyNorth Natural Gas) Corp., d/b/a Liberty (Liberty), appealed a New Hampshire Public Utilities Commission order denying Liberty’s request to recover development costs related to a proposed natural gas pipeline and tank system, the Granite Bridge project. This case arose from an unrealized construction project. Liberty relied solely on Tennessee Gas Pipeline Co., LLC (Tennessee Gas Pipeline) for its gas supply in southern and central New Hampshire. Liberty executives testified that Liberty sought more supply from Tennessee Gas Pipeline because Liberty was facing increased demand. Liberty and Tennessee Gas Pipeline agreed to an arrangement whereby Liberty would receive additional gas from a second pipeline, but Tennessee Gas Pipeline cancelled that arrangement. In response, Liberty began to explore other options, and eventually decided to construct its own pipeline and tank system, the Granite Bridge project. Liberty estimated that $7.5 million of that amount consisted of engineering, environmental, consulting, internal labor, commission related costs, and land costs. Despite those costs, according to Liberty, it would have been years before Liberty broke ground on Granite Bridge. Later, Tennessee Gas Pipeline offered Liberty more space on its pipeline at a cheaper rate than the projected cost of Granite Bridge. Liberty accepted that offer, and then cancelled the Granite Bridge project. The New Hampshire Supreme Court concluded Liberty could not recover its costs when it cancelled the project and consumers derived no benefit. The Commission's order was thus affirmed. View "Appeal of Liberty Utilities (EnergyNorth Natural Gas) Corp., D/B/A Liberty" on Justia Law
Appeal of Beal, et al.
Petitioners James Beal, Mary Beth Brady, Mark Brighton, Lenore Weiss Bronson, Nancy Brown, William R. Castle, Lawrence J. Cataldo, Ramona Charland, Lucinda Clarke, Fintan Connell, Marjorie P. Crean, Ilara Donarum, Joseph R. Famularo, Jr., Philippe Favet, Charlotte Gindele, Julia Gindele, Linda Griebsch, Catherine L. Harris, Roy W. Helsel, John E. Howard, Nancy B. Howard, Elizabeth Jefferson, Cate Jones, Robert McElwain, Mary Lou McElwain, Edward Rice, April Weeks, Michael Wierbonics, and Lili Wierbonics, appealed a Housing Appeals Board (HAB) order that reversed a decision of the Portsmouth Zoning Board of Adjustment (ZBA), which, in turn, had reversed certain approvals granted by the Portsmouth Planning Board (Planning Board) to respondent, Iron Horse Properties, LLC (Iron Horse). Iron Horse owned real property at 105 Bartlett Street in Portsmouth. In 2021, it requested various approvals from the Planning Board in connection with its proposed redevelopment of the site: three multi-family apartment buildings with a total of 152 dwelling units. Iron Horse sought a site review permit, lot line revision permit, conditional use permit (CUP) for shared parking, and a wetland CUP. The Planning Board granted the approvals, and the petitioners, describing themselves as “a group of abutters and other concerned citizens,” then filed an appeal with the ZBA. The ZBA granted the appeal, effectively reversing the Planning Board’s site plan and CUP approvals. Following denial of its motion for rehearing, Iron Horse then appealed the ZBA’s decision to the HAB. The HAB reversed the ZBA’s findings as to six of the petitioners’ claims and dismissed the remaining three claims. Petitioners took their appeal to the New Hampshire Supreme Court, raising a number of issues that were consolidated under two overarching questions: (1) whether Iron Horse’s proposed project met the six criteria for a wetland CUP set forth in section 10.1017.50 of the Portsmouth Zoning Ordinance; and (2) whether Iron Horse’s permit requests were barred under the doctrine of Fisher v. City of Dover, 120 N.H. 187 (1980). Finding no reversible error in the HAB’s decision, the Supreme Court affirmed. View "Appeal of Beal, et al." on Justia Law
Weiss, et al. v. Town of Sunapee
Plaintiffs Bradley Weiss and Cathleen Shea appealed a superior court order granting defendant Town of Sunapee's (Town) motion to dismiss. The trial court determined that, because plaintiffs failed to request a second rehearing from the Town’s Zoning Board of Adjustment (ZBA), the court did not have subject matter jurisdiction over their appeal. The New Hampshire Supreme Court reversed and remanded: pursuant to RSA 677:3, plaintiffs perfected their appeal to the superior court from the ZBA’s April 1 denial by timely moving for rehearing. View "Weiss, et al. v. Town of Sunapee" on Justia Law
Ortolano v. City of Nashua
The City of Nashua (the City) appealed a superior court order granting the petition of Laurie Ortolano compelling the City to conduct a reasonable search of its back-up tapes for records in response to Ortolano’s Right-to-Know Law request. The request asked for all emails sent and received by the following current and former City employees: Louise Brown, between November 1, 2020 and her last day of work, December 25, 2020; Amanda Mazerolle, between November 1, 2020 and March 7, 2021; and Karina Ochoa, between November 1, 2020 and March 7, 2021. The City replied on June 23, 2021 informing Ortolano that Mazerolle and Ochoa would both conduct reasonable searches for records matching Ortolano’s descriptions and that Ortolano would receive an update or response by July 16, 2021. The City stated that it no longer had “reasonable access to Ms. Brown’s emails from the time of her employment.” the City “claim[ed] that it met its requirement under RSA 91-A by looking for emails in Ms. Brown’s Outlook application and her personal U-drive and it was not required under RSA 91-A:4, III(b) to search the City’s backup tapes because such tapes are not ‘readily accessible’ as defined by the statute.” The trial court found that “it is undisputed that the City’s backup tape system exists, can be searched, and that files such as those requested by the petitioner are retrievable from the backup tapes.” After review of the superior court record, the New Hampshire Supreme Court found that the trial court did not err in finding that the requested emails on the back-up tapes were “readily accessible” to the City. View "Ortolano v. City of Nashua" on Justia Law
Appeal of Rancourt
Claimant Fran Rancourt appealed a Compensation Appeals Board (CAB) decision granting the request of the carrier, AIM Mutual — NH Employers Ins. Co., for a reduction of the claimant’s benefits from the Temporary Total Disability (TTD) rate to the Diminished Earning Capacity (DEC) rate. At the time of her injury, the claimant was employed as the “vice president of academic and community affairs” for the Community College System of New Hampshire (CCS). The injury occurred when the claimant slipped on ice, hitting her head. She was taken to the hospital where she received 11 staples to close a wound in her head. Three months later, the claimant was assessed by Dr. Glassman, an independent medical examiner, who recommended “partial duty modified work part-time” and physical therapy, and that the claimant see a concussion specialist. He concluded that claimant did “not have the ability to return to full duty work at this time,” but opined that “she could be evaluated for partial duty work, working three to four hours a day, two to three days a week.” In July 2019, claimant was visiting a friend in Maine when she fell stepping into a boat. As a result of the fall, the claimant severely injured her left hamstring, resulting in surgery. She reported that the fall was a result of problems with her depth perception related to her head injury. In March 2020, Glassman performed another independent medical examination to evaluate the extent of claimant’s continuing disability. Glassman reported that claimant continued to suffer from “postconcussion syndrome” as a result of the work injury in 2017. He concluded that claimant “has not returned to her pre-accident status” and “still has ongoing deficits and ongoing symptoms.” He reported that claimant feels about “60% improved,” and that, while “she is being seen by neuro-optometry and speech therapy,” she “has reached maximum medical improvement” for her post-concussion syndrome. It was his opinion that “no further treatment is indicated for the date of injury of November 20, 2017.” In May 2020, the carrier requested a hearing, pursuant to RSA 281-A:48 (2010), seeking to reduce or terminate the TTD indemnity benefits claimant had been receiving. The hearing officer granted the carrier’s request to reduce benefits as it related to claimant’s changed condition. Finding no reversible error in that decision, the New Hampshire Supreme Court affirmed. View "Appeal of Rancourt" on Justia Law
Szewczyk, et al. v. Continental Paving, Inc., et al.
Plaintiffs Andrew and Marian Szewczyk appealed superior court orders: (1) granting the motion to dismiss filed by defendant New Hampshire Department of Transportation (DOT); (2) striking the plaintiffs’ expert reports; and (3) granting the motions for summary judgment filed by defendants Bellemore Property Services, LLC (Bellemore) and Continental Paving, Inc. (Continental). In 2016, plaintiffs were injured in a motor vehicle accident on Route 3 in Nashua. While driving, they encountered significant flooding in the left-hand travel lane of the highway, and the vehicle they were traveling in hydroplaned. After plaintiffs stopped and got out of their car, a second vehicle hydroplaned and struck plaintiffs’ vehicle, which then struck and injured plaintiffs. When the police arrived at the scene, they discovered the flooding had been caused by a clogged catch basin. At the time of the accident, Continental was repaving Route 3 pursuant to a contract with DOT. Continental had subcontracted with Bellemore to clean the catch basins along Route 3. Plaintiffs filed a complaint against DOT, Continental, and Bellemore alleging that the three defendants collectively undertook a repaving and drainage system rehabilitation project and their combined and individual negligence caused the flooding, which caused the motor vehicle crash that injured plaintiffs. DOT moved to dismiss the count brought against it, arguing that plaintiffs’ failed to state a claim. The trial court granted the motion to dismiss, and later denied plaintiffs’ motion to reconsider. Thereafter, Continental and Bellemore moved for summary judgment and moved to strike the opinions of plaintiffs’ expert, highway engineer Thomas Broderick. The trial court found that Broderick’s opinion regarding the cause of the clogging of the catch basin was “based entirely on pure speculation without any factual support,” and granted the motion to strike, but also granted plaintiffs leave to supplement their objections to the motions for summary judgment. Plaintiffs filed a supplemental objection, and submitted with it, among other things, an expert report written by a hydrologic/hydraulic engineer, Richard Murphy. The trial court declined to consider Murphy’s opinion on causation and granted defendants’ motions for summary judgment. The trial court denied plaintiffs’ motion to reconsider the order, and plaintiffs appealed. After review, the New Hampshire Supreme Court affirmed the order granting DOT’s motion to dismiss, but reversed the orders striking the expert reports and granting the motions for summary judgment. View "Szewczyk, et al. v. Continental Paving, Inc., et al." on Justia Law