Justia Government & Administrative Law Opinion Summaries

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.

Respondent Erica Blizzard appealed a decision of the New Hampshire Department of Safety (DOS) that suspended her boating privileges. Carrying two passengers, Respondent piloted a motorboat on Lake Winnipesaukee. There was almost no visibility due to dark and inclement weather conditions. As the respondent later told investigators, she was unable to see the bow of her boat. She was operating the boat at eighteen to twenty miles per hour, unsure of her location or depth, when the boat collided with an island. The collision killed one passenger and seriously injured the respondent and the second passenger. As a result of the collision, the respondent was charged with boating while intoxicated and negligent homicide. A jury found her guilty of negligent homicide, but not guilty of boating while intoxicated. Respondent argued on appeal: (1) whether DOS lacked the authority to suspend boat-operation privileges because it has failed to promulgate associated regulations; (2) whether RSA 270-E:17 delegated legislative authority in violation of Part I, Article 37 of the State Constitution; and (3) whether the hearing notice complied with Part I, Article 15 of the State Constitution. Finding the DOS had the requisite authority to suspend Respondent's boating privileges, the Supreme Court affirmed the Department's decision.

Plaintiff Steven Ford appealed a superior court's order that dismissed his negligence claims against Defendants the Town of Windham and the New Hampshire Department of Transportation (DOT). In late 2008 the vehicle in which Plaintiff was a passenger was struck by another vehicle in Windham. A severe ice storm had caused a power outage that had rendered the street and crossing lights at the intersection where the accident occurred inoperable. Several hours before the accident, both the Town and DOT had received notice that the lights were inoperable because of the storm. The accident caused Plaintiff to suffer severe injuries. He sued for negligence. Defendants moved to dismiss, arguing they owed Plaintiff no duty to warn of any hazardous condition that might have existed because of the ice storm. Upon review of the applicable legal authority, the Supreme Court held that the trial court did not err in dismissing Plaintiff's negligence claims.

Plaintiffs Jason and Jennifer Antosz appealed a superior court order that granted summary judgment in favor of Defendant Doree Allain. Defendant owned property in Epping. In early 2008 the Town's fire department was called to Defendant's house because of a fire caused by the home's hot water heater. Jason Antosz was a volunteer firefighter with the Epping Fire Department who responded to the call. As he arrived on the scene, he walked down the home's driveway which was covered with packed snow and ice. He slipped and fell and was seriously injured. Plaintiffs sued Defendant for negligence, alleging the driveway was in an unsafe and unreasonable condition. Defendant argued that Plaintiffs' claims were barred by the "Fireman's Rule." Finding that the Fireman's Rule only applied to paid firefighters, the Supreme Court overruled the grant of summary judgment in favor of Defendant and remanded the case for further proceedings.

The Supreme Court granted an interlocutory appeal from the superior court that partially granted and partially denied the summary judgment motion filed by Defendants Lakes Region Water Company and Thomas Mason (collectively LRWC). The question before the Court was whether the superior court erred in concluding that Defendants were not exempt from the Consumer Protection Act to the extent that they allegedly misrepresented that the water they provided was safe for use and consumption. Answering in the affirmative, the Supreme Court reversed the trial court’s denial of partial summary judgment as to the claims of the plaintiffs Jo Anne Rainville, Carl Beher, Lisa Mullins d/b/a The Olde Village Store, and approximately fifty others, under the Consumer Protection Act (CPA) which sought damages for alleged misrepresentations about the quality of water provided.