Articles Posted in New Hampshire Supreme Court

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Respondent Patrick Roland appealed a New Hampshire Department of Safety (Department) decision requiring the installation of an ignition interlock device in his vehicle as a condition of restoration of his driver’s license. He pled guilty to misdemeanor DWI, after which his license was revoked for two years, retroactive to April 2016. In July 2016, the Department issued a notice of hearing to review respondent’s driving record. Review of respondent’s driving history had revealed that he had multiple DWI convictions. Roland argued on appeal: (1) the findings of fact in the hearing examiner’s initial report were insufficient to support the hearing examiner’s determination that “the safety of [Roland] and of other users of the highway would be enhanced” by the installation of a device; and (2) the issue of whether to require the installation of an interlock device was not “ripe” for consideration, and therefore his request for a new hearing should not have been denied. To the latter point, respondent contended a hearing “should properly be performed closer in time to when [he] will actually be eligible for restoration of his driver’s license,” and that a later hearing would provide him with an “opportunity to submit evidence that could assist in demonstrating, and even establishing, that he will not pose a danger to himself or others.” Finding the evidence presented was sufficient to support the Department’s decision to require the device, the New Hampshire Supreme Court affirmed. The Court did not reach respondent’s second issue. View "Appeal of Patrick Roland" on Justia Law

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Claimant Edmund Hibbard, Esq., Administrator of the Estate of Beatrice Jakobiec (Estate), appealed a New Hampshire Bar Association Public Protection Fund Committee (PPFC) decision finding that the Estate was entitled to reimbursement from the Public Protection Fund (PPF) in an amount significantly less than that which the Estate claimed was stolen by former attorney Thomas Tessier. Beatrice Jakobiec passed away in 2001, leaving two sons, Frederick Jakobiec, M.D. and Thaddeus Jakobiec, Jr., as heirs. In 2002, Tessier was appointed to administer the Estate. The value of the Estate for probate purposes, as determined by an ADO auditor was $576,074.03. The auditor concluded that “[t]he assets included in the Estate by Attorney Tessier were valid and belonged in the Estate valuation,” but that Tessier failed to include additional assets owned by Beatrice at the time of her death. The auditor concluded that it appeared Tessier took the proceeds from certain certificates of deposit and other checks “for his own purposes.” In addition, the auditor detailed Tessier’s misappropriation, using fraudulent powers of attorney, of funds belonging to Frederick individually or held in trust for Thaddeus, who has been blind since birth. In 2009, the Estate filed a claim alleging a loss consisting of $208,798.95 in stolen assets (the Stolen Assets), $96,500.00 in stolen legal fees, and $99,531.81 in lost income, but the PPFC only reimbursed the Estate half of the total amount. The Estate argued the PPFC erred by: (1) reducing the amount of its claim based upon an “earlier finding that Thaddeus Jakobiec . . . had received his full distribution from the Estate”; (2) reducing the Estate’s claim for stolen legal fees by the amounts of certain excluded checks; (3) finding that the Estate’s claim against the PPF included a claim for lost income; and (4) “applying credits for prior recoveries by the Estate for the gross amount of those recoveries rather than the net amount of the recoveries.” The New Hampshire Supreme Court found "nothing prohibiting a claimant from being made whole, if other sources allow it, and we can think of no persuasive policy reason for preventing a claimant from utilizing other sources to obtain a full recovery." Though the Court found no abuse of discretion with respect to the exclusion of expenses of recovery, the Court reversed as to the other amounts lost. View "Appeal of Estate of Beatrice Jakobiec" on Justia Law

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The Nashua School District (District) appealed an order of the New Hampshire Public Employee Labor Relations Board (PELRB) finding that the District committed an unfair labor practice by refusing to bargain with the American Federation of State, County, and Municipal Employees (AFSCME), Council 93, Local 365, Nashua Custodial/Janitorial Staff (Union) concerning the District’s plan to subcontract custodial work at the expiration of the term of the collective bargaining agreement (CBA) between the parties. “Reduced to its essence,” the issue before the New Hampshire Supreme Court in this case was whether its prior decisions in Appeal of City of Nashua Board of Education, 141 N.H. 768 (1997), and Appeal of Hillsboro-Deering School District, 144 N.H. 27 (1999), precluded a public employer from ever unilaterally determining to subcontract work that is performed by Union members under a CBA. The Union, in essence, argued that they did; the District argues that they did not. The Supreme Court agreed with the District, and reversed the Board’s contrary conclusion. View "Appeal of Nashua School District" on Justia Law

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Plaintiff Daniel Barry appealed a jury verdict in favor of defendants the New Hampshire Department of Health and Human Services (department) and William Fenniman, Jr., the director of the Division of Juvenile Justice Services during the relevant time period. Plaintiff worked as a youth counselor at the Sununu Youth Services Center (SYSC) until defendants terminated him, claiming that he had used excessive force against a youth resident and had failed to file a report regarding the incident. After the Personnel Appeals Board (PAB) reinstated him, plaintiff filed suit at issue here, alleging a claim for wrongful termination against the department, and a claim for interference with plaintiff’s right to freedom of expression under RSA chapter 98-E against the department and Fenniman in his official and individual capacities. On appeal, plaintiff argued the superior court erred when it: (1) declined to give collateral estoppel effect to the PAB’s findings that plaintiff had not used unreasonable or excessive force against the resident or violated SYSC policies; and (2) allowed defendants’ expert to testify regarding the reasonableness of plaintiff’s use of force. Defendants cross-appealed, arguing the superior court erred when it: (1) concluded that an employee protected by state personnel laws and a collective bargaining agreement could bring a claim for wrongful termination; and (2) declined to make factual findings to resolve the defendants’ motion to dismiss upon the ground of sovereign immunity. The New Hampshire Supreme Court affirmed the trial court’s rulings with respect to the issues raised by plaintiff in his appeal. As a result, the Court did not address the issues raised in defendants’ cross-appeal. View "Barry v. New Hampshire Department of Health &Human Services" on Justia Law

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During a regularly-scheduled meeting, the SAU’s Board voted to go into a nonpublic session to discuss two topics: the superintendent’s evaluation, and “emergency functions.” While in nonpublic session, the Board voted to seal the minutes of the meeting. In June 2016, plaintiff David Taylor asked the executive assistant to the superintendent to send him the minutes of the May 12 nonpublic session by e-mail. She informed plaintiff that she could not provide him with those minutes because they were sealed. A month later, plaintiff e-mailed the executive assistant again, asking her to forward to him, by e-mail, a June 22 e-mail regarding the nonpublic session that had been sent to the Board. The executive assistant again denied plaintiff’s request, referring him to the SAU’s Right-to-Know procedure, requiring the public seeking electronic records to come to the SAU’s offices with a thumb drive in sealed, original packaging or to purchase a thumb drive from the SAU at its actual cost. In August, plaintiff filed a complaint in which he alleged the SAU had violated RSA chapter 91-A by voting in closed session to seal the minutes of the nonpublic session of the May 12 meeting and by refusing to e-mail the records he requested. He also challenged the SAU’s practice of charging 50 cents per page for hard copies of public records. Plaintiff sought: invalidation of the vote to seal the minutes of the nonpublic session; release of the sealed minutes; a declaration that the SAU’s thumb drive policy violated RSA chapter 91-A; an order requiring transmission of the requested records to him by e-mail; other injunctive relief; and litigation costs. After review, the trial court found the SAU’s policy for transmitting public records complied with RSA chapter 91-A. Because of the SAU’s decision to keep sealed only the portion of the nonpublic session with respect to emergency functions, the trial court also found that the plaintiff’s challenge of the SAU’s action was “moot in all but one respect,” specifically, the single redacted sentence of the superintendent’s evaluation. On this issue, the court ordered that the SAU provide it with an un-redacted copy of the public minutes for in camera review. The trial court also determined that petitioner’s lawsuit had been necessary to ensure the Board’s compliance with RSA 91-A:3, and, therefore, awarded him litigation costs. However, the trial court ruled that plaintiff had no standing to challenge the cost of paper copies, because there was no evidence that he had asked for, or paid for, such copies. The trial court also found that the Board did not violate RSA 91-A:3, III by producing two sets of minutes for the May 12 meeting, one containing the public portion and the other the sealed portion. Finally, the court declined to enter the injunctive relief sought by the plaintiff. Finding no reversible error in the trial court’s judgment, the New Hampshire Supreme Court affirmed. View "Taylor v. School Administrative Unit #55" on Justia Law

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This case arose from an accident at a pond owned by the defendant, the Town of Chester, where Christopher Kurowski suffered injuries after being struck by a person using a rope swing attached to a tree on the shore. Plaintiff, Jay Kurowski, as father and next friend of his minor son, Christopher, appealed a superior court order dismissing his negligence and intentional tort claims against the Town, as barred by the recreational use immunity statutes. The New Hampshire Supreme Court concluded the Town was entitled to immunity under RSA 212:34, and affirmed. View "Kurowski v. Town of Chester" on Justia Law

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Petitioner Dao Nguyen appealed a New Hampshire Board of Barbering, Cosmetology, and Esthetics (Board) decision, suspending her personal license as a manicurist and revoking the shop license for Nail Care. In 2013, Board inspector Beulah Green conducted a routine inspection of Nail Care, finding numerous violations of the Board Administrative Rules (Rules), including two foot spas that were not disinfected properly, no record of cleaning for two foot spas, five tables that were not sanitized, numerous implements that were either not sanitized and disinfected properly or not discarded or disposed of properly, multiple “credo” blades, and the use of nail drills that are not manufactured for use on the natural nail (improper nail drills). For these violations, Green imposed a fine of $4,158. In the next few years, Green conducted additional inspections, and again found multiple, repeat violations of the Rules. Noting the repeated violations and the “blatant disregard” that the petitioner demonstrated towards the Rules, the Board suspended petitioner’s personal license for five years, revoked her shop license for Nail Care, and ordered her to pay all outstanding fines owed to the Board within 90 days. The Board also ruled that, if the petitioner’s license is reinstated, it will be subject to a three-year probationary period. Finding the Board’s decision was supported by substantial, credible evidence, the New Hampshire Supreme Court affirmed the Board’s decision. View "Appeal of Dao Nguyen" on Justia Law

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The State of New Hampshire moved to enforce administrative subpoenas served on defendants Actavis Pharma, Inc., Endo Pharmaceuticals, Inc., Janssen Pharmaceuticals, Inc., Purdue Pharma L.P., and Teva Pharmaceuticals USA, Inc. The State was investigating defendants’ role in allegedly causing health care providers to prescribe opioids to treat chronic pain. Defendants resisted, arguing the Office of the Attorney General’s (OAG) engagement of outside counsel was unlawful. In addition, defendants moved for a protective order, seeking to “bar the Attorney General from engaging contingent fee counsel to: (a) participate in or assume responsibility for any aspect of the State’s investigation of alleged violations of the Consumer Protection Act . . . ; or (b) participate in or assume responsibility for any subsequent enforcement action pertaining to alleged CPA violations.” Defendants argued that the OAG’s fee agreements with the firm Cohen Milstein: (1) violated RSA 21-G:22 and :23 (2012) (amended 2016); (2) violated New Hampshire common law; (3) were ultra vires because the OAG did not comply with RSA 7:12 (2013) (amended 2016) or :6-f (Supp. 2016); (4) violated the doctrine of separation of powers; (5) violated the New Hampshire Rules of Professional Conduct; and (6) violated due process under the New Hampshire and United States Constitutions. The State replied that an objection to the Attorney General’s use of outside counsel was not appropriate justification for refusing to comply with lawful subpoenas, and that defendants lacked standing to raise that complaint. The trial court denied the State’s motion to enforce the subpoenas and granted the defendants’ motion for a protective order “to the extent that the OAG and Cohen Milstein’s contingency fee agreement is invalid.” The trial court determined that the defendants had demonstrated standing to bring their claims, that the fee agreement was void, and therefore denied the State’s motion to enforce the subpoenas on that basis. The New Hampshire Supreme Court concluded defendants lacked standing to challenge the outside counsel agreement. It reversed and remanded the matter for further proceedings. View "New Hampshire v. Actavis Pharma, Inc." on Justia Law

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Petitioner’s receipt of developmental services was voluntary, and accordingly he retained the right to “seek a change in [developmental] services or withdraw entirely from the [developmental] service delivery system.” Petitioner Wayne Sawyer had a developmental disability and history of mental illness. He received state-administered developmental and mental health services and lived at the Laconia Designated Receiving Facility (Laconia DRF), a state-operated facility. Prior to his move to Laconia DRF, petitioner requested that his area agency affiliation for developmental services be changed to respondent Lakes Region Community Services (LRCS), the area agency serving Laconia. LRCS denied his request. Petitioner appealed to the Administrative Appeals Unit (AAU) of the New Hampshire Department of Health and Human Services (DHHS). The AAU affirmed, finding that the petitioner failed to prove that his move to Laconia DRF constituted a change in legal residence. On appeal, the petitioner argues that, under RSA chapter 171-A and its implementing regulations, he had a right to change his area agency affiliation to LRCS. LRCS counters that, because the petitioner remains institutionalized and was not conditionally discharged, his move was involuntary and, therefore, he had no right to change area agency affiliation. The New Hampshire Supreme Court agreed with petitioner that he had a right to change his area agency affiliation. View "Petition of Wayne Sawyer" on Justia Law

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Petitioner Beverly Desmarais appealed the decision of the New Hampshire Compensation Appeals Board (CAB) denying her request for attorney’s fees and costs that she incurred in litigating a fee dispute with the respondents, Utica National Insurance Group (Utica) and AMI Graphics. The CAB determined that, although the Workers’ Compensation Law entitled the petitioner to attorney’s fees and costs associated with litigating the merits of her workers’ compensation claim, it did not further entitle her to fees and costs incurred in successfully litigating the fee dispute. The New Hampshire Supreme Court reversed and remanded, finding that the evident purpose of paragraph VI of RSA 281-A:44 was to encourage claimants to obtain, and attorneys to provide, representation in a certain class of disputes regarding workers’ compensation benefits. The Court remanded to the CAB for a determination as to the reasonableness of the additional fees and costs that the petitioner incurred in litigating the fees and costs issue at the administrative level. Any party aggrieved by the CAB’s order on fees and costs may appeal to the Supreme Court pursuant to RSA chapter 541. View "Appeal of Beverly Desmarais" on Justia Law