Justia Government & Administrative Law Opinion Summaries

Petitioner Laconia Patrolman Association appealed a Public Employee Labor Relations Board (PELRB) finding that respondent the Laconia Police Commission did not commit certain unfair labor practices. The matter stemmed from negotiations the parties engaged in with regard to a collective bargaining agreement (CBA) that expired in June, 2010. As a tentative agreement was presented to the Laconia City Council for approval, the city manager said she could no longer support the tentative agreement. The Association filed an unfair labor practice charge alleging that the Commission violated state law when it failed to ensure that the city council voted on cost items in the CBA within thirty days of presentation. It further alleged that the Council interfered with the negotiations of the CBA, and that the Commission's acquiescence to the Council's interference amounted to a failure to bargain in good faith. The PELRB ruled that the Council's failure to vote was not an unfair labor practice, and that claims that the Council improperly interfered with the Commission's bargaining power could not be brought against the commission: the record was insufficient to establish the Council improperly usurped the Commission's authority. Upon review of the PELRB ruling on appeal by the Association, the Supreme Court affirmed, finding no unfair labor practices. View "Appeal of Laconia Patrolman Association" on Justia Law

Respondent William Rines appealed a superior court order that enjoined him from excavating on his property until he obtained a local use variance from Petitioner Town of Carroll. Ultimately, the trial court concluded that respondent's excavation was exempt from the permitting requirements, the Town's zoning ordinance required the variance before respondent began excavating, and that state law did not preempt the local zoning ordinance. Upon review, the Supreme Court affirmed the trial court's injunction, but remanded the case with respect to the calculation of attorney's fees. View "Town of Carroll v. Rines" on Justia Law

Respondent Nahla Abounaja appealed a district court order that awarded petitioner Myla Randall, $18,000 in damages because of the respondent's willful failure to provide heat to the petitioner's apartment for eighteen days. Petitioner rented an apartment from the respondent in Rochester. At some point before March 23, 2011, petitioner complained to the city's plumbing and health inspector that her apartment lacked heat. An inspector came to the premises and discovered that there was no heat in the petitioner's master bedroom because neither the radiator nor the electric heater worked. The inspector called respondent about this issue and met with her two days later. The inspector then sent a letter to the respondent about this problem, giving her fourteen days to remedy it. The respondent did not respond to the letter, nor did she return the inspector's subsequent telephone calls. Petitioner then filed suit on April 12, and the trial court issued a temporary order requiring respondent "to immediately restore and maintain all utility services" to the petitioner's apartment. Following the hearing on the petition, the trial court found that the respondent was aware that the heating units did not work and that she failed to have them repaired until April 18, and that her actions were willful. In her brief, respondent argued that her conduct was not "wil[l]ful" because she did not cause the petitioner's apartment to lack heat in the first instance. She argued that, at most, she merely "allow[ed]" the heating service to be interrupted; she did not "cause" the interruption itself. Her merely "negligent omission" did not constitute a willful act. Based upon the evidence at trial, the Supreme Court concluded the trial court reasonably found that the respondent's failure to have the units repaired was intentional, and, therefore, willful. However, because the trial court committed plain error when it awarded the petitioner $1,000 per day for at least some days that the respondent's violation of RSA 540-A:3, I, the Court vacated $17,000 of the damage award and remanded the case for further proceedings. On remand, the trial court was tasked with determining whether respondent willfully violated RSA 540-A:3, I after April 12, and, if so, the court was instructed to award petitioner $1,000 per day for each day that the respondent's violation continued. View "Randall v. Abounaja" on Justia Law

Petitioner New Hampshire Independent Pharmacy Association (NHIPA) appealed a superior court order that granted summary judgment to the New Hampshire Insurance Department. At issue were the requirements of RSA 415:6-aa and RSA 420-J:7-b, VIII which were enacted by the legislature in 2007. When these statutes first took effect, NHID interpreted them to require health benefit plans and health insurers providing prescription drug benefits to permit their insureds to purchase 90-day supplies of prescription drugs from retail pharmacies, provided that certain conditions were met. Under this construction, health insurers and health benefit plans could not limit coverage of 90-day supplies to those filled through mail-order pharmacies. In 2010, NHID changed its position and began reading these statutes as permitting health insurers and health benefit plans to limit coverage for 90-day prescription quantities to mail-order pharmacies. In response, NHIPA brought this action for declaratory judgment and a writ of mandamus, asking the trial court to direct NHID to enforce RSA 415:6-aa and RSA 420-J:7-b, VIII in a manner requiring health insurers and health benefit plans to cover 90-day supplies of prescription drugs filled at retail pharmacies. NHID moved for summary judgment and the trial court granted its motion, ruling that RSA 415:6-aa and RSA 420-J:7-b, VIII did not impose such a requirement on health insurers and health benefit plans. Upon review, the Supreme Court found that the language of RSA 415:6-aa and RSA 420-J:7-b, VIII to be plain and unambiguous, and affirmed the trial court's grant of summary judgment in favor of the Department. View "New Hampshire Independent Pharmacy Assn. v. New Hampshire Ins. Dept." on Justia Law

The State appealed a superior court decision dismissing its indictment against defendant Thomas White for violating RSA 651-B:4-a (Supp. 2012), which requires registered sex offenders to report to law enforcement the creation of an "online identifier." RSA 651-B:4-a requires registered sex offenders to report to law enforcement "any changes to an existing online identifier, or the creation of any new online identifier," before using it. "[O]nline identifier" includes "electronic mail address, instant message screen name, user identification, user profile information, and chat or other Internet communication name or identity information." The indictment alleged that the defendant "did knowingly fail to . . . report a MySpace account" as required under the statute. The trial court granted the defendant's motion to dismiss the indictment on the grounds that the defendant used his own name and already-reported e-mail address to create the account; thus, the trial court concluded, the defendant was not required under the statute to report the account's existence. The Supreme Court reversed. Construing "user profile" to include defendant's Myspace account "also comports with the general purposes of sex offender registration and reporting requirements, including the twin goals of 'investigating crimes committed online by registered sex offenders' and discouraging registered sex offenders 'from engaging in such criminal activities.'" The Court concluded that a Myspace account includes "user profile information," which, therefore, is an "online identifier" subject to the reporting requirement of RSA 651-B:4-a. View "New Hampshire v. White" on Justia Law

The petitioners, Bretton Woods Telephone Company, Inc., Dixville Telephone Company, Dunbarton Telephone Company, Inc., and Granite State Telephone, Inc., four exempt incumbent rural local exchange carriers (RLECs), appealed an order of the New Hampshire Public Utilities Commission (PUC) that denied their motion to rescind or declare null and void registrations of competitive local exchange carriers (CLECs) authorized by the PUC to engage in business as telephone utilities in the service territories of RLECs. Citing RSA 374:26 and RSA 374:22-g, among other statutes, the petitioners alleged that the PUC, before issuing the registrations, had failed to provide notice, hold hearings, and determine whether allowing such competition would be consistent with the public good. In light of the Supreme Court's decision in "Appeal of Union Tel. Co.," the petitioners specifically argued that federal law did not preempt these requirements. The PUC ultimately denied the petitioners' request and ruled that section 253(a) of the Telecommunications Act preempted RSA 374:26 and RSA 374:22-g, II. Upon review, the Supreme Court affirmed, finding that section 253(a) preempted state and local laws, regulations, and requirements that "prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." View "Appeal of Bretton Woods Telephone Company, Inc." on Justia Law

Petitioner Kevin P. Sheehan appealed a superior court order in favor of Respondent New Hampshire Department of Resources and Economic Development (DRED) on his request for declaratory, injunctive, and other relief. In 2008, Petitioner purchased property in Derry which abuts Jackman Road, a class VI town road and not in good condition. The Property is connected to Warner Hill Road by a .44 mile tract of land that is under DRED’s control as part of its statewide trail system. Before purchasing the Property, Petitioner understood that the State claimed ownership of a small corridor adjacent to his land and that a gate blocked non-recreational motor vehicle access. After purchasing the property, Petitioner filed this equity action seeking to bar DRED from prohibiting or interfering with non-recreational motor vehicle access over the portion of the corridor separating his property from Warner Hill Road. Ultimately the superior court determined that the State had acquired title in fee simple to the corridor through a highway layout and that the portion of the corridor abutting the property was not a "public road" because the State has never "constructed" on it. On appeal, Petitioner contended that the trial court erred when it determined that the State owned the corridor in fee simple and when it found that the corridor was not a public road. Upon review, the Supreme Court determined that DRED did not bar Petitioner’s access over the corridor. Rather, DRED prohibited one form of access, non-recreational motor vehicle travel. Accordingly, the Court held that the trial court did not err in concluding that DRED has not limited "the public’s right to pass over existing public roads" pursuant to state law. View "Sheehan v. New Hampshire Dept. of Resources & Economic Dev." on Justia Law

Respondent William Rines appealed a superior court order that enjoined him from excavating on certain real property until he obtained a local use variance from Petitioner Town of Carroll (Town), and that imposed civil penalties and attorney’s fees. On appeal, the respondent did not challenge the trial court’s determination that both types of excavation are exempt from the permitting requirements of RSA chapter 155-E. He argued, however, that the trial court erred when it determined that RSA chapter 155-E did not preempt the zoning ordinance provisions applicable to both types of excavation. Upon review, the Supreme Court held that the trial court erred in finding that the requirements of Section VI of the Town’s zoning ordinance were not preempted by RSA chapter 155-E. Given its conclusion, the Court did not reach the other issues raised in the respondent’s appeal. The case was remanded for further proceedings. View "Town of Carroll v. Rines" on Justia Law

In this petition for original jurisdiction, defendants Southern New Hampshire Medical Center (SNHMC) and Bernard Bettencourt, Jr., D.O., sought review of a superior court's decision that three provisions of the statute governing medical injury screening panels (RSA 519-B:8-:10 (2007)), violated the Separation of Powers Clause of the State Constitution. Upon review, the Supreme Court concluded that in so ruling, the trial court erred. Nonetheless, the Court affirmed portions of the trial court's decision on alternative grounds. View "Petition of Southern New Hampshire Medical Center" on Justia Law

Respondent Town of Moultonborough (Town) appealed a decision of the New Hampshire Public Employee Labor Relations Board (PELRB) which granted a petition for certification filed by the petitioner, New England Police Benevolent Association, Inc. (NEPBA). In June 2010, the NEPBA filed a petition for certification of a proposed collective bargaining unit to be composed of "[a]ll sworn and non-sworn employees of the Town of Moultonborough Police Department excluding the Chief of Police." The proposed bargaining unit contained fourteen employees in seven different positions. The Town objected to the petition on the basis that RSA 273-A:8, I (2010) (amended 2011) requires a minimum of ten employees to form a bargaining unit, and that this requirement was not met because several of the positions were not statutorily eligible for inclusion. The Town argued that the executive assistant, communication specialist, and prosecutor positions, and a probationary employee lacked a "shared community of interest" with the remaining members of the proposed unit. The Town also argued that the executive assistant was a confidential employee, see RSA 273-A:1, IX(c) (2010), and that the sergeant and corporal positions were supervisory positions, see RSA 273-A:8, II (2010). Upon review, the Supreme Court reversed the PELRB as to its inclusion of the sergeants and corporal in the bargaining unit, and affirmed the remainder of its determinations. The Court made no ruling on the eligibility of the bargaining unit after exclusion of the sergeant and corporal positions. View "Appeal of Town of Moultonborough" on Justia Law