Justia Government & Administrative Law Opinion Summaries

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.

Respondent, the father of "Haley K.," appealed a family division order that terminated his parental rights. He argued that the trial court erred in finding the State provided reasonable services for his reunification with the child. Finding that Respondent failed to make adequate provisions for his child's care and support during his incarceration ("respondent's physical unavailability did not absolve him of his parental obligation to provide for the care of his child"), the Supreme Court affirmed the trial court's decision terminating his parental rights.

Respondent A&J Beverage Distribution, Inc. appealed decisions of the Department of Labor (DOL) brought under the Whistleblowers' Protection Act by Petitioner Kevin Perrier. Petitioner worked for A&J as a truck driver. When he first started working, Petitioner did not participate in the company health plan. When premiums increased, Petitioner opted out of the plan. In 2009, rates decreased, and Petitioner claimed he was not informed of the decrease. When he sought information on the plan at that time, the company refused to give it to him. Petitioner notified the company that he had contacted the federal Department of Labor to learn more about his rights under ERISA with regard to notification of the company health plan. A&J then gave Petitioner the requested information, but shortly thereafter, he was terminated. The New Hampshire DOL hearing officer ruled that Petitioner "sustained his burden of proof to show that he was discharged in retaliation for having exercised his legitimate rights under the law." On appeal, A&J asserted preemption: that the whistleblower claim was preempted by ERISA. Upon review, the Supreme Court vacated the DOL's decision: "while the petitioner correctly notes that state and federal courts have concurrent jurisdiction over actions... his whistleblower claim is not such an action. ... [the Court] reject[ed] the petitioner's argument that DOL had jurisdiction over the petitioner's ERISA claim."

Plaintiff Michael Silverstein appealed the decision of the New Hampshire Public Employee Labor Relations Board (PELRB) which declined to exercise jurisdiction over his unfair labor practice complaint against Defendant Andover School Board (School). In May 2010, Plaintiff, a physical education teacher at the Andover Elementary/Middle School, signed an employment contract that reduced him from a full-time (five days per week) employee to a four days per week employee, cut his salary by approximately $7000, and increased his costs for health insurance. Later, pursuant to a three-step grievance process in the collective bargaining agreement (CBA) governing his employment, Plaintiff initiated a grievance against his employer arising out of the reduction. The PELRB concluded that it lacked jurisdiction "to interpret the Andover CBA and decide the merits of Mr. Silverstein's complaint during the grievance proceedings and after the grievance proceedings are completed." Subsequently, the PELRB denied Plaintiff's motion for a rehearing. The Supreme Court "explicitly reiterated" that the PELRB has no authority to interpret a CBA or review the merits of a grievance when the CBA to which the parties are subject includes a final and binding grievance process internal to the employer, and affirmed the PELRB's decision.

Anthony F. appealed an order by the Derry District Court that denied his motion to suppress evidence that supported a child delinquency petition against him. The juvenile was stopped by school officials as he was leaving campus one morning in 2008. He refused to return, stating he did not feel well. Assistant principals escorted him back to the school where he was searched. One assistant principal asked the juvenile if he had "anything on [him] that [he] shouldn’t have on school property." The juvenile eventually handed over a small bag of marijuana that he retrieved from inside his sock. Subsequently, a delinquency petition was filed. The juvenile moved to suppress the marijuana evidence, arguing that the search was unconstitutional under the New Hampshire and Federal Constitutions. The State countered that there was no search under the law, but even if a search occurred, it was constitutionally valid. Upon review, the Supreme Court concluded that the facts of this case did not support a finding of reasonable grounds for suspecting that a search of this juvenile would turn up contraband. The assistant principals searched the juvenile because it was school policy to search all students who return to school after leaving an assigned area. The record reveals, however, that the juvenile was leaving the school, not returning. It was school officials who forced his return. The Court held that the search was "suspicionless" and as such, illegal. The Court reversed the decision in this case and remanded the case for further proceedings.

Plaintiff Jonathan Doyle appealed a superior court order that granted summary judgment to Defendants the Commissioner of the New Hampshire Department of Resources and Economic Development and the Monadnock State Park Manager (collectively, DRED), and that denied his motion for summary judgment. In 2009, Plaintiff staged a "Bigfoot" sighting (with himself dressed as Bigfoot) on Mount Monadnock. At the top of the mountain, he put on a costume, and filmed conversations he had with other hikers. On his way back down, he encountered two park staff members, and persuaded them to write a note saying there had been a "sighting" on the mountain. To garner publicity for his next appearance, Plaintiff had a friend write a press release for the local paper. Much to their annoyance, Park officials began fielding media calls trying to confirm whether reports of the sighting were true. When Plaintiff returned for more filming, he was confronted by park officials checking whether Plaintiff had a "special-use permit" to continue filming. With none, Plaintiff and his crew were asked to leave the mountain. Plaintiff subsequently brought a declaratory judgment action against DRED, arguing that Res 7306.01(a) violated the right to free speech contained in the New Hampshire Constitution and the First Amendment to the United States Constitution. He also sought a permanent injunction, nominal damages, costs and fees. The trial court granted summary judgment in favor of DRED, ruling that Plaintiff failed to show that Res 7306.01(a) was unconstitutional. On appeal, Plaintiff argued the trial court erred because Res 7306.01(a) was void for vagueness, overbroad on its face and not narrowly tailored, and also overbroad as applied to Plaintiff's small-scale project. Upon review, the Supreme Court reversed the grant of summary judgment in favor of DRED: "More troubling is that this regulation needlessly stifles political speech, an integral component to the operation of the system of government established by our Constitution."

Petitioner Countrywide Home Loans, Inc. appealed an award by the Commissioner of the State Banking Department in favor of Respondent Rachel Nicholson based on claims under the Consumer Protection Act. The issue stemmed from Respondent contacting Countrywide in 2005 in order to purchase a house. She spoke with two Countrywide agents who promised that they would "investigate and present her with the best [financing] program." At the hearing before the Commissioner, Respondent testified the agents orally approved her for a 30-year fixed rate mortgage loan at 6% interest. Thereafter, Respondent spoke with agents on a weekly basis regarding the property purchase and loan. The agents did not raise any problems with the loan application until two days before the scheduled closing date. On that day, despite the fact that there were no changes in Respondent's employment status or credit since the application had been filed, the agents informed her that Countrywide would not be able to grant a fixed interest loan for the amount she needed. They informed her that to purchase the home, she would need to apply for two different loans. On the scheduled closing date, as instructed by the agents, Respondent applied for two new loans at higher rates of interest but for shorter durations. After multiple hearings, the Commissioner ultimately entered an order ruling that Countrywide had committed "an unfair or deceptive practice" under state law, and ordered that Countrywide reimburse Respondent for all monies paid prior to, at and after closing, as well as discharge the first mortgage and void the second. Furthermore, Countrywide was ordered to quitclaim the property to Respondent. Finding that the Commissioner should not have granted a hearing on the merits of Respondent's claims, the Supreme Court vacated the award entered in her favor.