Justia Government & Administrative Law Opinion Summaries

Petitioner James Margeson appealed a decision of the New Hampshire Compensation Appeals Board (CAB) that denied him reimbursement for medical treatment and workers' compensation benefits. Petitioner conducted a "bed check" at a state youth center when he twisted his knee. The Center contended that Petitioner's injury was precipitated by a pre-existing war wound. The CAB rejected the Center's version of Petitioner's injury. However, the CAB did not award Petitioner reimbursement, finding that Petitioner "did not encounter any greater risk of his employment than in his everyday life and the stairs were merely an incident or an occasion that accompanied the injury." The CAB denied Petitioner's motion for reconsideration. Upon review, the Supreme Court found that the parties agreed that Petitioner was injured at work. The parties disputed whether his injury arose out of his employment. The Court adopted an "increased-risk" test for injuries attributable to neutral risks such as the unexplained fall at issue in this case: "the injury must actually result from the hazards of employment and not merely from the bare existence of employment." The Court reversed and remanded the CAB's decision to make specific findings as to whether Petitioner's injury was a "neutral risk" and if so, that record reflects the medical and legal causation of the injury.

Respondents North of the Border Tobacco, LLC (Tobacco) and Roll Your Own, LLC (RYO) appealed decisions of the Superior Court that enjoined them from allowing customers to use on-site cigarette-making machines to make rolled cigarettes with loose tobacco unless they make required escrow payments as required by law. An escrow fund was set up by the state to share the burden from damages for smoking-related health care costs. Respondents own tobacco shops that sell various tobacco products. At some point, for a rental fee, cigarette-making machines were installed for on-site customer use. The State filed suit in 2009 and sought an injunction against Respondents to stop selling or rolling cigarettes until they paid into the fund. Tobacco denied that it manufactured cigarettes and argued that it did not have to contribute to the fund. The trial court disagreed and issued the injunction. Upon review, the Supreme Court affirmed the trial court's decision to issue the injunction against Tobacco. However, the Court vacated the trial court's decision against RYO, holding that a preliminary injunction was premature prior to resolving several constitutional issues pertaining to RYO's business operations. Accordingly, the Court affirmed part, reversed part of the trial court's ruling, and remanded the case for further proceedings.

Petitioners Peter Gordon and the Peter Gordon Revocable Trust of 1999 own six oceanfront properties adjacent to and at the end of a road in the Town of Rye. Petitioners unsuccessfully appealed an order from the Town Board of Selectmen that a portion of the road had become public by prescription. On appeal to the Supreme Court, Petitioners argued that the Boardâs conclusion was wrong. Central to the Board's conclusion was Petitioner's 1997 request to remove snow from the road. The Board reasoned that if the road was private, the Town would have had no duty to remove the snow. Upon consideration of matter, the Supreme Court found the evidence presented at the Board hearing was insufficient to declare the road a public road by prescription. The Court vacated the Board's decision, and remanded the case to the superior court for further proceedings.

Bower Road in Henniker was originally designated a "public highway" in 1797. In 1895, the Town voted to discontinue the road. In 2002, Timothy Hanson purchased a parcel of land in Henniker which could only be accessed by the road. The neighbors disputed Mr. Hanson's use of the road, and he successfully brought suit to establish a right-of-way in the road. In 2009, Plaintiff Russell Forest Management acquired the Hanson property. Plaintiff applied to the Town Board of Selectmen for a building permit to construct a single-family home there. Following a hearing, the Board rejected Plaintiff's application, holding that the discontinued road could not be used as planned. The Board found that Plaintiff's property did not have the required frontage, rather, a simple right-of-way. Plaintiff unsuccessfully appealed to the Zoning Board of Appeals (ZBA) and the superior court. On appeal to the Supreme Court, Plaintiff argued that over time, the discontinued "public highway" became a "private road" due to the nature of Mr. Hanson's original use to access his property. As a private road, Plaintiff argued the Board erred in finding that it did not meet the statutory requirements for frontage to the proposed single-family house. The Supreme Court found that the "road" indeed did not meet the Town's requirements of a private road nor as frontage to the property. Furthermore, the Court found that the "road" did not meet the criteria for being a qualified easement. Accordingly, the Court affirmed the lower court's and the ZBA's decisions to deny Plaintiff its building permit.

Respondent, the New Hampshire Department of Revenue Administration (DRA), appealed a Superior Court ruling. Money distributions from the Lyme Timber Company (Lyme) paid to limited partners that lived in New Hampshire were not considered taxable income under the state tax code. The court reasoned that the Lyme partners' interests were not "transferable shares" within the meaning of the tax code, and therefore not taxable. On appeal to the Supreme Court, the DRA argued that the trial court misinterpreted and misapplied the tax regulations, and failed to consider portions of the Lyme partnership agreement. In its review, the Supreme Court engaged in defining the pertinent terms of the tax code and the Lyme partnership agreement. The Court concluded that the trial court did misinterpret many of the pertinent terms that were the basis of this appeal. The Court reversed the trial court and remanded the case for further proceedings.

Petitioners Matthew Kennedy and the Hinsdale Federation of Teachers appealed the decision of the New Hampshire Employee Labor Relations Board (PELRB) that denied their unfair labor practice claims against Respondent, the Hinsdale School District (District). Mr. Kennedy was a music teacher for about ten years and a member of the teachers' union. The District and Union were parties to a collective bargaining agreement (CBA) that contained a grievance procedure that provided for binding arbitration. The only matters excluded from the grievance procedure were management prerogatives and teacher non-renewals. Citing a lack of student participation, the District notified Mr. Kennedy that it would not renew his contract. Before the 2009-2010 school year, the District eliminated the Hinsdale band program and entered into an agreement with Brattleboro High School where interested students from Hinsdale could participate in Brattleboro's music offerings. Petitioners filed an unfair labor practice complaint with the PELRB alleging multiple violations of the CBA. The PELRB dismissed Petitioners' claims. On appeal to the Supreme Court, Petitioners argued that the District illegally outsourced its band program to Brattleboro, and challenged the District's reasons for its "reduction-in-force" claim. The Supreme Court could not conclude that the PELRB's decision was erroneous or that it was unjust or unreasonable. Accordingly, the Court affirmed the PELRB's decision to dismiss Petitioners' complaint.

Respondent Judith McGann was terminated as superintendent of Petitioner School Administrative Unit #44 (SAU). During the evidentiary portion of the SAU Board's termination hearing, SAU called an expert witness. Ms. McGann requested access to the expert's file. The moderator of the hearing denied Ms. McGann's request. Following the hearing, the Board voted to terminate Ms. McGann. On appeal to the Board of Education, Ms. McGann argued that the SAU violated her due process rights by denying her access to the expert's records. The Board ordered SAU to produce the expert's work file, and recommended that the SAU's decision be vacated and remanded for a new hearing. The SAU sought review of the State Board of Education's decision ordering it to produce the expert's file. The Supreme Court noted that due process requirements for binding administrative procedures are quite different from those binding judicial procedures. The Court did not find that the SAU Board violated Ms. McGann's constitutional due process rights in the course of the termination hearing. The Court found that the Board gave Ms. McGann "extensive opportunity" to meaningfully cross-examine the expert despite not having his file. The Court dismissed Ms. McGann's appeal, reversed the Board's order to produce the expert's file, and affirmed the SAU's decision to terminate Ms. McGann's employment as superintendent.

Petitioners Daniel and Lisa B. appealed the decision of the New Hampshire State Board of Education (Board) that upheld a thirty-four day suspension imposed on their daughter Keelin B. Keelin opened an email account under another studentâs name, and then sent sexually suggestive, lewd and threatening email messages to the principal of her school and one teacher. When the deception was discovered, the Board âsentencedâ Keelin to a thirty-four day suspension. Keelinâs parents appealed to the School Board, but the Board upheld the suspension. Upon review, the Supreme Court found that Keelinâs âsentenceâ exceeded the Boardâs maximum allowable suspension under these kinds of circumstances. The Court reduced Keelinâs suspension to twenty days, but affirmed the Boardâs decision in all other respects.

In September, 2009, counsel for the Hampton Police Association wrote to the Town of Hamptonâs Manager requesting copies of invoices from all attorneys who gave advice to or otherwise represented the Town in a grievance and arbitration matter. The Association sought the invoices under the state âRight-to-Knowâ law. The next day, the Town Manager advised the Association that invoices from its attorneys contained confidential detailed billing narratives that were privileged information, and not subject to the Right-to-Know law. Understanding this, the Association replied to the Town Manager, suggesting the Town hand over the invoices with all the privileged information redacted. The Association sought information relating to the amounts of money the Town spent on counsel, not the information in the narratives. The Town still refused to produce the invoices, and the Association took the Town to court. Town counsel provided the trial court with the invoices for an in camera review. The court ordered the release of the invoices, and ordered the Town to make the copies. The Town objected to all the âextra work,â and the trial court amended its order to require the Town and its outside counsel to compile a list of the invoices with the general subject matter of the matters billed, and the total prices paid. The Town maintained that discussing the narratives even in a general sense, still constituted privileged information. The court denied the Town any relief from compiling the list, and the Town appealed. The Supreme Court concluded that the trial court erred when it required the Town to create an entirely new document to provide the Association with the information it sought. The Court remanded the case for further proceedings, ordering that the Town should produce the invoices with privileged information redacted.

Petitioners ATV Watch and Andrew Walters brought suit against Respondent New Hampshire Department of Transportation (DOT) seeking the disclosure of agency documents under the stateâs âRight-to-Knowâ act. Walters is the director of ATV Watch. He wrote to the commissioner of the DOT regarding a recent inquiry related to the Federal Highway Administration, asking for clarification on the federal law that governed use of rails trails within the state. The DOT responded that it would keep Walters informed of any new developments from the talks the state had with the federal government. Walters sent the DOT an email in April, 2007, asking again for information on use of the trails. In November, the DOT responded to another email request from Walters, indicating that there was no new information. On November 21, Walters sent an email to the DOT criticizing the Department for being unresponsive to his requests, and alleging that the Department was withholding documents. The Department responded that it had complied with state law by responding to Waltersâ requests. Petitioners filed suit in January, 2008, seeking a declaratory judgment, injunctive relief, fees, costs and sanctions for what it felt was the DOTs withholding documents. At the hearing, the DOT indicated it had given Walters all records it could, with the exception of certain documents redacted or withheld on the basis of a privilege or exemption. Following the hearing, the DOT provided the court under seal the unredacted copies of the withheld documents, along with an index of those materials for the courtâs review. The court issued its order on the merits, finding that most of the documents were properly redacted or withheld as privileged. The court denied the Petitionersâ motion for reconsideration. Interpreting New Hampshireâs âRight-To-Knowâ law, the Supreme Court affirmed the lower courtâs ruling. The Court found from the record that Petitioners lacked sufficient reasons to overcome the asserted privileged documents, and therefore were not entitled to the relief they sought.