Justia Government & Administrative Law Opinion Summaries

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.

In this interlocutory appeal, the Supreme Court considered an order of the superior court which denied Defendant Empire Automotive Group, Inc.'s motion to dismiss two indictments charging with with felony violations of the state Consumer Protection Act (CPA). Defendant was indicted by the grand jury on two counts of violating the CPA by allegedly placing inspection stickers (indicative of having passed inspection) on two automobiles sold to consumers under installment sales contracts when Defendant knew the vehicles had not passed the on-board diagnostic emissions tests required by the New Hampshire Division of Motor Vehicles. Defendant moved to dismiss on the grounds that its conduct was exempt from the CPA and subject to the exclusive jurisdiction of the banking department, and that the department of justice which initiated the criminal proceedings, lacked authority to do so. Finding that the "trade or commerce" involved in this case involved the sale of motor vehicles and clearly brought Defendant's actions well within the scope of the CPA, the Supreme Court held that the trial record reflected substantial evidence to support Defendant's conviction.

Petitioner Brandt Development Company of New Hampshire, LLC (Brandt) appealed a Superior Court order that upheld a decision of Respondent City of Somersworthâs (City) zoning board of adjustment (ZBA). The ZBA denied its application for a variance. Brandt owned a house and attached barn in the residential multi-family district of the City. In November 1994, Brandt applied for a variance from size and frontage requirements to convert the property, then being used as a duplex, into four dwelling units. The ZBA denied the application after finding that the property failed to satisfy the five criteria for a variance. From 1995 to 1997, Brandt added four bedrooms to the upstairs unit after receiving permits to do so. In December 2009, Brandt again sought to convert the property into a four-unit dwelling, and again applied to the ZBA for a variance from the Cityâs area, frontage, and setback requirements. The ZBA declined to consider the merits of the variance application on the basis that âcircumstances [had] not changed sufficiently to warrant acceptance of the application.â The superior court affirmed the ZBAâs decision in August 2010. Upon review, the Supreme Court found that the legal criteria the ZBA used in making its determination were not "discreet and unrelated criteria, but interrelated concepts that aim to ensure a proper balance between the legitimate aims of municipal planning and the hardship that may sometimes result from a literal enforcement of zoning ordinances." As such, the Court found that the ZBA's denial of Brandt's variance application was not reasonable in light of state law, and it reversed the ZBA's and Superior Court's decisions, and remanded the case for further proceedings.

In this personal injury case, Plaintiff Alfred Ocasio appealed a judgment entered in favor of Defendant Federal Express Corporation (FedEx). Plaintiff was a mail handler who pulled by hand, large, heavy canisters filled with mail from delivery tractor-trailer trucks. One day as he was pulling canisters from a FedEx tractor-trailer truck, he accidentally stepped into and caught his leg in a gap between the rear of the truck and the loading dock. When a canister he had been pulling continued to roll toward him, the bones of his trapped leg were shattered. He argued on appeal that the Trial Court erred when it allowed the jury to apportion fault to his employer, the United States Postal Service (USPS), and when, despite the jury's $1,445,700 verdict in his favor, it entered judgment for FedEx after comparing the fault allocated to him to the fault allocated to FedEx. Upon review, the Supreme Court held that "while it was not error to allow the jury to apportion fault to the USPS, it was error to deny the plaintiff any recovery against FedEx. We, thus, affirm in part, reverse in part, and remand."

Petitioner Limited Editions Properties, Inc., appealed a superior court order upholding a decision to deny Petitioner's subdivision application by the planning board of Respondent Town of Hebron (Town). Petitioner owned 112.5 acres of property in Hebron on the northwest end of Newfound Lake with frontage on West Shore Road. A portion of the lot lay within the Hebron lake district, and the remainder lay within the rural district. In an earlier decision, the Board determined that because Petitioner had materially revised its plan for the property, it was required to submit a new application to develop it. Petitioner sued, and the Board was reversed. When the Board resumed consideration of the application, Petitioner requested that it grant preliminary conditional approval of the plan's overall concept before Petitioner sought the required state and federal permits. Petitioner acknowledged that the plan would not meet then-current state regulations; it intended to revise the plan to obtain the necessary permits after the Board granted preliminary approval. Once it obtained the permits, Petitioner intended to return to the Board for consideration of any necessary changes to the plan. However, the Board determined that it would not approve the subdivision application in stages; rather, it would either conditionally approve the application or deny it. After holding several hearings on the application, a motion to deny the application was introduced and seconded, and after further discussion, three of the five members of the Board voted to deny the application. Petitioner subsequently appealed to the superior court, which upheld the Board's decision. Upon review, the Supreme Court held that Petitioner failed to establish that the trial court erred in affirming the Board's decision. Accordingly, the Court affirmed the trial court's decision.