Justia Government & Administrative Law Opinion Summaries

This appeal and cross-appeal arose out of a civil action by plaintiffs, Jeffrey Frost, Frost Family, LLC (Frost Family), and Chretien/Tillinghast, LLC (Chretien), against Michael Delaney, individually and as former attorney general, and multiple other former and current State officials, for their actions in the investigation and prosecution of Frost for alleged violations of RSA chapter 397-A. Plaintiffs appealed only orders of the Superior Court granting defendants’ motion for summary judgment on the plaintiffs’ 42 U.S.C. 1983 claim against Kathleen Sheehan (bank examiner for the New Hampshire Banking Department) on the ground that she was entitled to qualified immunity, and dismissing their negligent supervision claims against Peter Hildreth (former commissioner of the Department) and Maryam Desfosses (Department hearings examiner) on the ground that they were entitled to absolute prosecutorial immunity. Defendants the State of New Hampshire, the Department, and Sheehan cross-appealed. Chretien and Frost Family were New Hampshire limited liability companies organized for the purpose of real estate acquisition, holding, and development. Frost was a member and designated manager of Chretien and a member of Frost Family. Chretien sold one of its properties to Robert Recio and his housemate in a seller-financed real estate transaction. In late December 2009, Recio filed a complaint against Chretien with the Consumer Protection Bureau of the Attorney General’s Office alleging, among other things, that plaintiffs had fraudulently induced him to enter into the sale. The complaint was forwarded to the Department, which assigned investigation of the complaint to Sheehan. Sheehan, Gorham, and Manchester Police Department officials drafted an application for a warrant to search Frost’s residence, which also served as the business address for Chretien, for evidence that the plaintiffs had participated in unlicensed mortgage lending in violation of RSA chapter 397-A. The supporting affidavit averred that Frost, as a member of Chretien, “had acted as a Mortgage Banker” with regard to the conduct complained of in Recio’s complaint. Frost was arrested and charged with four class A misdemeanors alleging violations of RSA chapter 397-A. The district court later granted Frost’s motion to suppress the evidence obtained as a result of the search. The court found that Sheehan misrepresented that Chretien was listed as the “Mortgage Banker” in the Recio transaction and that her misrepresentation was material. The court, therefore, determined that the warrant application lacked probable cause. Thereafter, the court granted Frost’s motion to dismiss the criminal charges. Upon review of the Superior Court record, the Supreme Court found no reversible error as to the grant of summary judgment, and affirmed. View "Frost v. Delaney" on Justia Law

In a declaratory judgment action, the State appealed a superior court order granting summary judgment in favor of plaintiff STIHL Incorporated (individually, and d/b/a Northeast STIHL). STIHL is a corporation that manufactures, distributes, and sells an array of handheld power and non-power tools such as chain saws, leaf blowers, hedge trimmers, axes, pruners, and mauls. Although many of its products have engines, none has wheels, engine and transmission, or is capable of transporting a person from one location to another. In 1981, the legislature enacted RSA chapter 357-C, the so-called “dealer bill of rights,” to regulate, among others, automotive manufacturers and dealers. the legislature increased the level of regulation it imposed. As the legislature expanded RSA chapter 357-C, it also enacted RSA chapter 347-A, a similar but less comprehensive regulatory scheme providing protections to equipment dealers. After the enactment of SB 126, STIHL sought a declaratory judgment that RSA chapter 357-C, as amended, did not apply to it. The State countered that, as a “forestry” and “yard and garden” equipment manufacturer, STIHL was subject to regulation under RSA chapter 357-C. Both parties moved for summary judgment. The trial court found that RSA chapter 347-A, before it was repealed, regulated STIHL’s agreements with its dealers because, under that statutory scheme, the legislature chose to broadly define the term “equipment.” Nevertheless, the court concluded that because STIHL produces only handheld, not ground-supported or wheeled, equipment, it falls outside of the purview of amended RSA chapter 357-C. Finding no reversible error in the superior court’s judgment, the Supreme Court affirmed. View "STIHL, Inc. v. New Hampshire" on Justia Law

The Environmental Protection Agency (EPA) required that owners of underground storage tanks demonstrate their ability to pay cleanup costs and compensate third parties for bodily injury and property damage arising out of releases of petroleum products from their tanks. New Hampshire’s Oil Discharge and Disposal Cleanup Fund (ODD Fund) was an EPA-approved program that complied with the federal requirement. In 2003, the State sued several gasoline suppliers, refiners, and chemical manufacturers seeking damages for groundwater contamination allegedly caused by methyl tertiary butyl ether (MTBE). In 2012, petitioners sought a declaratory judgment and equitable relief against the State. Each petitioner was a “distributor” of oil under RSA chapter 146-D and paid fees into the ODD Fund. They alleged that “[t]o date, the costs of MTBE remediation in the State of New Hampshire has been paid for primarily through” the ODD Fund, and that that fund was financed, in part, through fees that they paid. Petitioners sought a declaration that those fees “are unconstitutional as the [State] has recovered and/or will recover funds from the MTBE Lawsuit for the cost of MTBE remediation,” and that those fees should be reimbursed to them from: (1) “the settlement proceeds the [State] has received and will receive through the MTBE Litigation”; (2) “any future recovery the [State] receives through the MTBE Litigation”; and (3) “[a]dditionally, or in the alternative, . . . from the funds recovered, and/or to be recovered in the future in the MTBE Litigation, . . . under principles of equitable subrogation and/or unjust enrichment.” On appeal, the petitioners argue that the trial court erred in ruling that they lacked standing to seek reimbursement of their fees from the settlement funds. They also argued that the trial court erred in ruling that their equitable claims are barred by sovereign immunity. Find View "Aranosian Oil Co., Inc. v. New Hampshire" on Justia Law

Appellant Kerry McCarty, as executrix of the Estate of Ruth C. McCarty, appealed a circuit court order denying her motion to dismiss the claim of the New Hampshire Department of Health and Human Services (DHHS) for repayment of medical assistance provided to the decedent through the State's Medicaid program. She argued the court erred by concluding that DHHS's claim was not barred by the statute of limitations. Finding no reversible error, the Supreme Court affirmed. View "In re Estate of Ruth C. McCarty" on Justia Law

Petitioner David Eskeland began work at the New Hampshire Department of Fish and Game in 1990 and, accordingly, became a mandatory member of the New Hampshire Retirement System (NHRS). On October 1, 2010, he retired from the Department of Fish and Game with twenty years and three months of creditable service, at which point he began receiving his service retirement pension. After he retired, a friend told the petitioner that he should have retired on a disability retirement allowance rather than on a service retirement allowance. As a result of this conversation, and three months after he retired, petitioner filed an application for accidental disability retirement based upon work-related injuries he sustained in 2002 and 2004. In December, 2011, the board accepted the hearings examiner's recommendation to deny the petitioner's application for accidental disability retirement. The recommendation was based upon a medical certification that the petitioner was not permanently incapacitated by a work-related injury because he had worked full-time, without accommodation, for six years following his most recently accepted workers' compensation injury. Petitioner moved for reconsideration, and the board referred the request to the hearings examiner. In reviewing the request for reconsideration, the hearings examiner became aware of a potential jurisdictional issue and notified petitioner that, because he "was a beneficiary when he applied for disability retirement, his membership appears to have terminated and the Board of Trustees appears to lack jurisdiction to award him a disability retirement." After a three-day hearing, the hearings examiner recommended that the board find that it did not have jurisdiction to grant accidental disability retirement benefits. The board accepted the recommendation. Finding no reversible error with the Board's decision, the Supreme Court affirmed. View "Petition of David Eskeland" on Justia Law

Defendants Catherine Bailey, Rhylan Bruss, Benjamin DiZoglio, Elizabeth Edwards, Elizabeth Grunewald, Charlene Higgins, William Hopkins, Michael Joseph, Brian Kelly, Matthew Lawrence, Keith Martin, Christian Pannapacker, Tara Powell, Matthew Richards, Katheryn Talbert, and Leah Wolczko, appealed a circuit court ruling that they violated a City of Manchester ordinance establishing a park curfew of 11:00 p.m. to 7:00 a.m. In October 2011, defendants were participating in a movement known nationally as "Occupy Wall Street." One defendant explained that "[o]ccupy is a tactic. Occupy means staying in one place until your grievances are addressed." On October 19, shortly after 11 p.m., the Manchester police told the people present in the park that the police would enforce the park curfew ordinance and asked those present to leave. The defendants declined to do so and received summonses for violating Manchester City Ordinance 96.04. Defendants moved to dismiss the charges against them, arguing, in part, that the "application of the criminal law to their protected rights to free speech" violated the New Hampshire and Federal Constitutions. The court denied defendants' motion after a hearing, and found the defendants guilty. Finding no reversible error, the Supreme Court affirmed the circuit court's ruling. View "New Hampshire v. Bailey" on Justia Law

Petitioner Old Dutch Mustard Co., Inc. appealed a New Hampshire Waste Management Council (Council) decision upholding a determination by the New Hampshire Department of Environmental Services (DES) to grant a permit to intervenor Pioneer Point Enterprises, LLC (Pioneer), to build and operate a solid waste facility adjacent to the petitioner's property. In May 2008, Pioneer applied for a permit to operate a solid waste management facility in an existing structure near the Souhegan River in Greenville. The Souhegan River was a "designated river" under the New Hampshire Rivers Management and Protection Act (RMPA), and under the Comprehensive Shoreland Protection Act (CSPA). DES denied the permit, concluding that the proposed facility violated the 250-foot setback requirement for solid waste facilities specified in the RMPA. Approximately six months later, Pioneer submitted an amended application, accompanied by a request for a waiver to build a new access driveway within fifty feet of the petitioner’s property. After the hearing, the Council ruled that the petitioner failed to prove that the issuance of the permit and waiver was either unreasonable or unlawful under the circumstances of this case. Petitioner argued on appeal that the Council erred when it: (1) concluded that only Unit 2 constituted the facility, or, alternatively, that Unit 2 itself did not violate the 250-foot setback; (2) failed to rule that because of Pioneer’s pre-permit construction, DES was required to deny the permit; (3) failed to consider the impact on the petitioner of granting the driveway setback waiver; and (4) reviewed the waiver of the driveway setback under an incorrect standard. Finding no reversible error, the Supreme Court affirmed. View "Appeal of Old Dutch Mustard Co., Inc." on Justia Law

The Town of Charlestown appealed a decision of the New Hampshire Board of Tax and Land Appeals (BTLA) dismissing its petition for reclassification of current use parcels owned by taxpayer TransCanada Hydro Northeast, Inc. The Town asserted that, "[b]ecause the three parcels are part of a development involving land use for the purpose of generating electricity, they have been improperly classified as open space land under" RSA chapter 79-A. As a result, the Town requested that the BTLA revoke the current use status of the three parcels and require the Town's assessing officials to reclassify the parcels. The Town further requested that the BTLA issue an order requiring the assessing officials to reassess taxes for tax years 2007 through 2012. TransCanada objected, arguing that the three parcels were not improperly classified as open space land. After its review, the Supreme Court concluded that the BTLA did not err in dismissing the Town's petition for reclassification on the ground that the Town could unilaterally reclassify the land. As the Town agreed at oral argument, the Court did not address whether the Town could apply the reclassification retrospectively. View "Appeal of Town of Charlestown" on Justia Law

Respondent R. Eric Bloomfield, DVM, appealed a decision of the New Hampshire Board of Veterinary Medicine which reprimanded respondent based upon its findings that he failed to do a physical examination of a puppy prior to demonstrating a restraint technique, that his restraint of the puppy was excessive, and that he failed to respect the opinion of the puppy's owners. A couple took their five-month old puppy to respondent for a routine checkup. Respondent determined that the male puppy was "dominant" and proceeded to demonstrate a dominance-submission technique, which included picking the dog up by the scruff of the neck and pinching his snout. The dog responded by urinating on the examination table, then defecating, struggling briefly, then laid still. The dog was pronounced dead later that day. The couple filed a formal complaint against respondent regarding his treatment of their puppy. The Board found that respondent did not engage in misconduct, but that he failed to respect the couple's opinion to demonstrate the submission technique. On appeal, respondent argued that the evidence did not support the Board’s finding that he failed to do a physical examination of the puppy prior to demonstrating a restraint technique, and that his restraint of the puppy "was excessive, especially given the breed." He also argued that RSA 332-B:14, II(c) was "impermissibly vague," and, therefore, violates his procedural due process rights. Finally, he argued that the Board erred by not requiring expert testimony on the standard of care. Finding no reversible error, the Supreme Court affirmed. View "In the Matter of R. Eric Bloomfield, DVM " on Justia Law

In the summer of 2008, defendant Eli and Bessie Cohen Foundation, doing business as Cohen Camps, hired Michael Feld to serve as a counselor at Camp Tel Noar on Sunset Lake in Hampstead, as it had done the previous summer. Prior to employing him each summer, defendant performed a criminal background check on Feld, and each time his record was clear. During the beginning of his second summer at the camp, other counselors noticed a change in Feld's personality from the prior year, including that he was more outgoing and eccentric, and that he behaved inappropriately at times. Feld has suffered from bipolar disorder for years. Feld's father spoke with the camp director and informed him that Feld could become "manic" and should be taking his medication. On the evening of July 6, Feld and a group of counselors went to a doughnut shop. While there, Feld became increasingly agitated, expressed a desire to return to the camp, and began throwing away the other counselors' unfinished food and drinks in an attempt to compel them to leave. Upon their return to the camp around midnight, Feld’s roommate reported Feld’s behavior to the boys' head counselor. Feld and his roommate then conversed with one another in their room for several hours, during which time Feld’s behavior became increasingly erratic and he demonstrated mood swings, paranoid thoughts, and delusions of grandeur. At approximately 5:00 a.m., Feld forced his way into a private residence immediately adjacent to the camp. The homeowner's wife telephoned the police and Feld ran from the premises. Plaintiff Kathleen Boulter, a Hampstead police officer, was dispatched "to detain, question and/or arrest the suspect as a result of his alleged conduct, and to investigate the home invasion complaint." As the plaintiff was interviewing the homeowner, they observed Feld running down the road naked. Plaintiff ran after Feld, repeatedly telling him to "get down on the ground." When Feld charged at her, plaintiff discharged her taser, but Feld tackled her and began to strangle her, nearly causing her to lose consciousness. The homeowner knocked Feld off plaintiff and plaintiff locked herself and the homeowner in her police cruiser to wait for backup. Feld was subsequently apprehended following a struggle with the plaintiff and two other officers who had been called to the scene. Plaintiff sued defendant and Feld to recover for injuries she suffered as she was attempting to arrest Feld, alleging negligent, reckless, and intentional misconduct. All four of the counts in her writ that pertained to defendant were based upon the assertion that defendant owed plaintiff a duty of care. According to plaintiff, "as a direct, proximate, and foreseeable result of the negligence of the Defendant, . . . [she] sustained painful, serious and permanent injuries." Because the injury giving rise to plaintiff's negligence claims directly arose from the alleged "negligent conduct which created the particular occasion for [her] official engagement," the Supreme Court concluded that such claims were barred by the Firefighter's Rule. View "Boulter v. Eli & Bessie Cohen Foundation" on Justia Law