Justia Government & Administrative Law Opinion Summaries

Petitioner 38 Endicott Street North, LLC appealed a superior court order that dismissed its petition under the Right-to-Know Law and denied its request for attorney’s fees. In 2011, Petitioner sent Respondent the State Fire Marshal, head of the New Hampshire Division of Fire Safety a letter requesting to inspect all records, information, and documents related to a September 17, 2010 fire that took place on its property and the "investigation thereof." Petitioner did not receive a response, and on May 3, 2011, sent a second letter demanding a response. On May 5, 2011, the Fire Marshal replied, disclosing the Incident Initiation Report and its supplement, but withholding all other materials because the investigation was ongoing. On May 6, 2011, Petitioner filed a sought an injunction to direct the Fire Marshal to produce the undisclosed materials pursuant to the Right-to-Know Law. Petitioner also requested attorney’s fees and costs. The Fire Marshal responded that the undisclosed materials are excluded from the Right-to-Know Law under the exemption for records “compiled for law enforcement purposes.” After a hearing, the trial court ruled that the withheld records were exempt from the Right-to-Know Law, denied the petition, and also denied Petitioner’s request for attorney’s fees and costs. On appeal, Petitioner argued that the trial court erred in ruling that the materials were compiled for law enforcement purposes and that disclosure could reasonably be expected to interfere with law enforcement proceedings. Petitioner also argued that the trial court erred in denying its requests for an in camera review of the materials or the compilation of a Vaughn index, as well as in denying its motion for attorney’s fees and costs. Finding no error, the Supreme Court upheld the trial court's judgment.

Respondent Liberty Mutual Fire Insurance Company appealed a superior court order that denied its motion for summary judgment and granted summary judgment in favor of Petitioner Rebecca Rivera. The court ruled that an automobile policy (policy) issued to Rivera’s parents excluded liability coverage but afforded uninsured motorist coverage for injuries Rivera sustained in a single-vehicle accident in Dracut, Massachusetts. Upon review, the Supreme Court affirmed the grant of summary judgment in Petitioner's favor: "the terms of the owned vehicle exclusion appear to remove [Petitioner's vehicle] from the definition of uninsured motor vehicle even though, as to Rivera, there [was] no insurance available. While Liberty Mutual is free to limit the extent of its liability through the use of an exclusion it cannot do so in contravention of statutory provisions or public policy."

Plaintiff Professional Fire Fighters of New Hampshire (PFFNH) appealed a superior court order that ruled Defendant The New Hampshire Local Government Center (LGC), was not required to provide certain meeting minutes under the Right-to-Know Law. LGC produced the vast majority of the documents requested by PFFNH, but redacted certain portions under a claim of attorney-client privilege. Dissatisfied with the redacted records, PFFNH moved to compel LGC to produce the unredacted minutes of fourteen meetings that occurred between 2000 and 2009. PFFNH argued that the redacted portions should have been released because the oral communications of LGC’s counsel occurred during meetings that were open to the public under RSA chapter 91-A, thereby defeating any claim of privilege. The superior court disagreed and denied the motion to compel. "As the superior court observed, "the fact that the meeting occurs in a public place does not destroy the privilege, if no one hears the conversation." The Supreme Court concluded that LGC could have reasonably relied on the absence of public attendees to ask for the candid advice of counsel. Had members of the public been present, the conversation could have progressed differently. Thus, because no third persons were present at the meeting, LGC was not required to take any further precautions to ensure the communications were private.

Pro se Plaintiff Robert Suprenant appealed a superior court order that dismissed his claims against Defendant Deborah Mulcrone under the doctrine of absolute quasi-judicial immunity. Defendant was the guardian ad litem for Plaintiff's son in a contested case between Plaintiff and the son's mother. Defendant was appointed to investigate how Plaintiff and his son's mother should divide parenting time and residential responsibility for their son. Defendant stated in her report that although it was "commendable" that Plaintiff had no criminal charges since 1994, his failure to disclose his prior charges was "troubling." Plaintiff filed suit against Defendant alleging those statements in her report were negligently made and breached an implied contract with Plaintiff to observe "reasonable standards of care and fair dealing." Upon review, the Supreme Court concluded that Defendant was entitled to absolute immunity for her acts. Accordingly, the Court upheld the trial court's dismissal of Plaintiff's lawsuit.

The State appealed a superior court's ruling that RSA chapter 100-C (Supp. 2011) (the Judicial Retirement Plan) violated Part I, Article 23 of the New Hampshire Constitution. Petitioner Raymond Cloutier was a retired probate court judge. Six intervenors were retired supreme, superior, probate and district court judges. Petitioner submitted a written request to the Board of Trustees of the New Hampshire Judicial Retirement Plan (board) asserting that his retirement allowance was erroneously calculated pursuant to RSA chapter 100-C, and that he was entitled to benefits under the retirement statutes that were in effect when he was appointed to be a judge. Following a hearing, the trial court granted summary judgment for the petitioners, concluding that the application of RSA chapter 100-C to judges who accepted their positions before its enactment results in impairment of contract rights in violation of the New Hampshire Constitution. However, the trial court rejected Petitioner's assertion that the ten percent and one percent salary increases authorized in 2003 and 2005 should be included in calculating their benefits under the prior retirement statutes. The State raised two issues on appeal: (1) whether the trial court erred in ruling that RSA chapter 100-C violates Part I, Article 23 of the New Hampshire Constitution; and (2) in the event the trial court’s ruling was upheld, whether RSA chapter 100-C is unconstitutional only as applied to judges who met the service and age requirements for retirement as of January 1, 2005. Petitioners cross-appealed, arguing that the trial court erred in ruling that the 2003 and 2005 salary raises are not properly included as "currently effective annual salary" when calculating their retirement benefits. Upon review, the Supreme Court was persuaded by the board’s position that salary adjustments were authorized for the limited purpose of compensating judges for their ten percent earnable compensation contribution required under the new retirement plan. The adjustments may not be characterized as "effective annual salary" for purposes of calculating benefits under the prior retirement statutes. The Court affirmed in part, reversed in part, and remanded the case for further proceedings.

Intervener Parade Residence Hotel, LLC appealed a superior court order that vacated and remanded a decision of the Zoning Board of Adjustment (ZBA) of the City of Portsmouth that upheld the City Planning Board's approval of Parade's application to amend its previously approved site plan. Parade's property abuts Plaintiff Harborside Associates, LP's property. In 2008, the Board approved Parade's application to construct a five-story building that included a hotel, restaurant and retail space. Parade began construction in 2009. The City adopted a new zoning ordinance later that year to become effective in 2010. The terms of the new ordinance changed those that were in effect when Parade was granted its site plan. When Parade applied for an amendment to its site plan, Harborside objected. Following a hearing, the Board approved the application without requiring Parade to comply with the new ordinance. Harborside appealed to the ZBA, who subsequently denied Harborside's objection. Harborside appealed, and the superior court vacated the ZBA's decision, finding that Parade presented a "major change" in its site plan requiring compliance with the changed ordinance. Upon review, the Supreme Court concluded the superior court did not err in arriving at its decision, and affirmed.

The New Hampshire Department of Revenue Administration (DRA) appealed a superior court order that reversed its decision assessing a real estate transfer tax against Petitioners Say Pease, LLC and Say Pease IV, LLC. Two International Group, LLC (TIG) is a real estate holding company. It owned a ground lease on property near Pease International Tradeport that it wanted to use to secure a mortgage loan. To obtain the loan, TIG’s prospective lender required that TIG, and all of its members, be "single purpose bankruptcy remote entities." To comply with the lender’s requirement, the members of Say Pease formed Say Pease IV, a new limited liability company (LLC) with the same members. Say Pease IV’s LLC agreement provides that it was "formed for the sole purpose of being a Managing Member and Member of [TIG]" and was not authorized "to engage in any other activity[,] business or undertaking so long as [TIG] shall be indebted under any mortgage or other securitized loan." Say Pease’s interest in TIG was transferred to Say Pease IV, and Say Pease IV replaced Say Pease as TIG’s managing member. As a result of these transactions, Say Pease IV owned a 47.5% interest in TIG as a sole purpose remote bankruptcy entity, Say Pease held no interest in TIG, and TIG obtained the loan. Based upon this transfer, DRA issued notices assessing the real estate transfer tax against Say Pease and Say Pease IV. After appealing unsuccessfully through DRA’s administrative appeal process, Say Pease and Say Pease IV appealed to the superior court. The parties filed cross-motions for summary judgment, and the trial court reversed DRA's order, ruling that the transfer at issue was not a "[c]ontractual transfer," RSA 78-B:1-a, II (2003), and, therefore, the real estate transfer tax did not apply. Upon review, the Supreme Court found that the parties did not employ a business entity as a shield for an otherwise taxable exchange of value for an interest in property. Instead, those that executed Say Pease IV’s LLC agreement sought to maintain TIG’s original ownership while placing it in a suitable financing vehicle; the promises exchanged related to the creation of the financing vehicle, Say Pease IV, not the subsequent property transfer. Thus, the substance of the transaction here failed to create a bargained-for exchange because there was no "exchange of money, or other property and services, or property or services valued in money for an interest in real estate."

Respondents the Commissioner of the New Hampshire Banking Department and the New Hampshire Banking Department (collectively, the Department), appealed an order of the Superior Court that permanently enjoined the Department from pursuing an administrative proceeding against Petitioner Jeffrey Frost on the ground that the Department lacked subject matter jurisdiction. Petitioners Frost, Chretien/Tillinghast, LLC, and Frost Family, LLC, cross-appealed, arguing that the trial court erred by denying their request for attorney’s fees. Frost is a member and designated manager of Chretien/Tillinghast, LLC (Chretien), and a member of Frost Family, LLC (Frost Family). Chretien and Frost Family (collectively, the LLCs) are New Hampshire limited liability companies organized for the purpose of real estate acquisition, holding, and development. The underlying dispute arose as the result of two seller-financed real estate transactions, one conducted by Frost Family and the other by Chretien. After both instances of seller-financing, Petitioner submitted a loan originator license application to the Department. At the time the administrative proceedings were initiated, the Department notified Petitioner that he could request a hearing with the Department. Petitioner did not file such a request. Instead, all Petitioners initiated a declaratory judgment proceeding in superior court, which included a request for a temporary restraining order. The petitioners contended that Respondents lacked subject matter jurisdiction to proceed against Frost and violated the State Constitution's prohibition against retrospective laws by seeking to impose a $25,000 fine for each alleged violation. After a hearing, the trial court granted the preliminary injunction, concluding that "[w]hile the [Department] may have jurisdiction over Frost because he is now a loan originator, it [could] take no action against him based on the September 2008 or the March 2009 transactions." Further, the trial court concluded that since the Department "may not impose any penalties on Frost," it did not need to consider the issue of the retrospective nature of the sanctions. Upon review, the Supreme Court agreed that the Department lacked subject matter jurisdiction over the matter and affirmed the superior court's judgment.

Plaintiff Dana Chatman appealed a superior court order that dismissed his negligence claims against Defendant Paul Giampa, and his respondeat superior claim against Defendants Strafford County and the Strafford County Department of Corrections. Plaintiff was participating in a work program run by the Corrections Department, under the direct supervision of Giampa. Giampa directed Plaintiff and others to load numerous tables and chairs onto a trailer. The trailer was not yet hitched to another vehicle, and not situated on even ground. Giampa directed Plaintiff and the others to lift the trailer and hitch it to a pickup truck when a weld on the trailer jack/hitch failed, causing the trailer to fall on Plaintiff's left leg and ankle. Plaintiff sustained permanent injury to his leg and ankle. The trial court agreed with the defendants that the plaintiff's claims did not fall within the scope of RSA 507-B:2 because the truck and trailer were not being "operated" at the time of the loading/hitching, and declined to find that RSA 507-B:2 was unconstitutional. Upon review, the Supreme held "that the entire range of activities inherent in the loading and unloading process must be considered to determine whether a vehicle was being operated" and that "[o]peration includes participation in loading and unloading activities." The Court reversed the trial court's decision and remanded the case for further proceedings.

Respondent Hollis Education Association, NEA-New Hampshire, appealed a decision of the public employee labor relations board (PELRB) which sustained an unfair labor practice complaint filed by Petitioner Hollis School Board which ruled that speech-language pathologists and occupational therapists employed by the school district were not members of the bargaining unit represented by the Association. The recognition clause in the collective bargaining agreement defined members of the bargaining unit as "[c]ertified full-time teachers, librarians and guidance counsellors who actively teach at least 50% of their time in the Hollis School District and are employed by said district." The recognition clause did not specifically refer to speech-language pathologists or occupational therapists. Nonetheless, the Association argued that the term "certified teacher" was "broad enough to include speech-pathologists and occupational therapists." It maintains that "[s]ince both job titles teach and are certified, they should fall within . . . the recognition clause." Upon review, the Supreme Court fund that by its plain language, the term "certified full-time teachers" does not include speech-language pathologists or occupational therapists: "neither an employer nor a union can 'avoid the need to satisfy the statutory requisites for adding [a] position to the bargaining unit' by simply treating certain positions as though they were included within the bargaining unit." The Court affirmed the PELRB decision.