Justia Government & Administrative Law Opinion Summaries

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

Respondent Richard Townsend, appealed a superior court order that: (1) granted summary judgment in favor of the petitioner, Town of Barrington (Town), on its claims that respondent used his property as a campground and his barn as a dwelling without proper Town approvals; and (2) awarded attorney's fees to the Town. In September 2008, the motor home in which the respondent had been living sustained damage from an electrical fire rendering it uninhabitable. Following the fire, he moved into his barn, which he described as "adequate for emergency living quarters." The barn is a two-story structure with a workshop on the lower level and the respondent's office on the upper level. The barn has insulation, sheetrock, carpet, electricity, plumbing, two heating systems, and central air conditioning. The second floor also has restaurant kitchen equipment, a sink, a bed, a futon, a game table, and massage and fitness equipment. In March 2009, the Town sent the respondent a notice of zoning violation/cease and desist order. The respondent replied that although he had not yet completed the repairs to his fire-damaged RV, he would "move the unfinished home from the barn to appease the town." He asserted that he had moved out of the barn by April 1, 2009. The Town asserted that it sent a second letter to the respondent in May 2009, "reiterating the violations and notifying [him] that court action would be taken if he failed to come into compliance." It commenced that action in July for preliminary and permanent injunctions, civil penalties, and attorney's fees. The respondent brought a number of counterclaims alleging, among other things, bad faith by the Town's code enforcement officer and police chief. The Town moved for summary judgment. The trial court granted the Town's motion. On appeal, the respondent argued that the trial court erred in granting summary judgment on the code violation issues because "[m]aterial issues of fact existed regarding [his] use of his property and barn." He also argued that the trial court erred in awarding attorney's fees to the Town. Finding no error, the Supreme Court affirmed. View "Town of Barrington v. Townsend" on Justia Law

Petitioners J.K.S. Realty, LLC and L.J.J. Realty, LLC, appealed a superior court ruling that Respondent City of Nashua did not take their property by inverse condemnation. Petitioners are two trusts that owned as tenants-in-common a 26.8 acre parcel of land that was originally purchased in 1980 for development purposes. The northern section of the property was in the area of a planned "Board Street Parkway." In 1983, Petitioners successfully petitioned to have the property rezoned to prepare the property for sale to a developer. Since 1998, they made numerous unsuccessful attempts to sell the property or any portion thereof. The last purchase and sale agreement was entered into in 2002, for sale of the entire property with a closing in April 2004. At some point, the buyer learned that the City was unsure whether it would take the property for the parkway and asked the petitioners for an extension until he learned what the City intended to do. The petitioners decided to keep the property until it was resolved whether the City was going to take the property and, as a result, the sale did not go through. Since 2004, the petitioners have not marketed the property. However, they have harvested timber on the property for a profit and there was testimony that, unless prohibited by zoning regulations, the petitioners "would have been able to undertake" building "single-family residences, . . . conservation subdivisions, modular homes, manufactured homes, elderly housing, commercial uses, and multi-family developments." In 2009, the petitioners filed a petition for inverse condemnation, requesting that the trial court rule that the City took the property by inverse condemnation in 2004, and sought damages, including but not limited to, the fair market value of the property on that date. They alleged that the delays and continuing uncertainty regarding the parkway deprived them of all economically viable use of their property as of April 2004, when the last purchase and sale agreement fell through. Finding that the trial court properly declined to rule that the property was taken by inverse condemnation, the Supreme Court affirmed. View "J.K.S. Realty, LLC v. City of Nashua " on Justia Law

Plaintiffs Kenneth Bond and Deborah Thibault, on behalf of themselves and a class of others similarly situated, appealed a superior court order granting summary judgment to the defendants, the City of Manchester and Paul Martineau in his official capacity as Commissioner of the Manchester Welfare Department (collectively, the City). In January 2010, the plaintiffs applied for general assistance from the City pursuant to RSA chapter 165. See RSA 165:1, I (2002). On February 24, 2010, the City approved $140.00 per week in rental assistance. On March 18, 2010, the City suspended this assistance for seven days because of the plaintiffs' failure to provide certain documentation, including that which related to $30 the plaintiffs used to buy gas for a vehicle. The City lifted this suspension on March 25, 2010, noting that the plaintiffs were "unable to show compliance with the $30 purchase of vehicle gas that [they] stated [they] had previously purchased through an alternate financial resource." On April 9, 2010, the City revoked an April 8 voucher and denied the plaintiffs all assistance for six months because they had misrepresented information related to their vehicle. The plaintiffs petitioned the superior court to enjoin the City from suspending their assistance. Because the Supreme Court held that RSA 165:1-b and the Guidelines pertaining to rental assistance actually conflict, the Court reversed the trial court's grant of summary judgment in favor of the City and remanded the case for further proceedings. View "Bond v. Martineau" on Justia Law

Petitioners the City of Concord, the County of Belknap, and Mascenic Regional School District, appealed superior court order that denied their motion for summary judgment and granted summary judgment in favor of the State. The New Hampshire Retirement System (NHRS) is a tax qualified pension trust for certain public employees. The petitioners, on behalf of themselves and similarly situated municipalities, counties, and school districts, filed a petition for declaratory and injunctive relief, and damages in superior court, naming the State of New Hampshire and NHRS as respondents. The petition alleged that section 52 was an unfunded mandate that violates Part I, Article 28-a of the New Hampshire Constitution. Both the petitioners and the State moved for summary judgment. NHRS took no position on the constitutionality of section 52, but filed a separate motion for summary judgment, arguing that it was an improper party and that the New Hampshire Constitution and RSA 100-A:15, I, forbid it from using NHRS trust funds as the source of any monetary compensation to the petitioners. The trial court denied the petitioners' motion for summary judgment, granted the State's motion for summary judgment on the merits, and, accordingly, did not reach NHRS's motion. The petitioners appealed, arguing that the trial court erred in granting the State's motion for summary judgment, and maintaining that section 52 is an unconstitutional unfunded mandate. The Supreme Court affirmed: "[t]here is also no indication that the amendment was designed to delegate to local governments effective control over the establishment of the state budget and appropriations. Indeed, to interpret the amendment in such fashion would bring it into conflict with Part II, Article 2 of the State Constitution, which confers 'the supreme legislative power' of the State on the House of Representatives and the Senate. Without a far more explicit indication that the people intended such a substantial alteration of fundamental legislative power, we decline to read Article 28-a in this fashion." View "City of Concord v. New Hampshire" on Justia Law