New Hampshire Bar Association News
City of Keene v. James Cleaveland
June 9, 2015
Affirmed in part, Vacated in part
The City of Keene, like most cities, employs parking enforcement officers (PEOs) to monitor the proper use of parking meters and enforce parking rules and regulations. In December 2012, the respondents began protesting parking enforcement in the city of Keene. They would follow the PEOs, spot expired meters, and fill the meter before a ticket could be issued, an act the respondents referred to as a “save.” They would then leave a card on the “saved” vehicle’s windshield that reads: “Your meter expired! However, we saved you from the king’s tariff!”
In addition, the respondents also videotaped the PEOs, criticized the PEOs for issuing tickets, encouraged them to quit their jobs, and called the PEOs names, including using profanity. At an evidentiary hearing, the respondents testified that they engage in these activities to protest parking enforcement. The PEOs testified that they asked the respondents to cease their activities, lodged complaints with the local police department, and reported the conduct to the city attorney.
The city filed a petition for injunctive relief in the Superior Court as well as civil tort claims against the respondents. Although the city’s initial requested relief was broad, it ultimately narrowed its requested injunctive relief to require the respondents to keep outside of a zone of 15 feet around the PEOs while on duty.
The city explicitly stated it did not seek to restrict the respondents’ speech rights, including their right to videotape, but was seeking to restrict only the conduct that was interfering with the PEOs’ ability to perform their jobs, distinguishing the respondents’ speech from their actions. The respondents moved to dismiss, and the trial court dismissed the petition and tort claims, ruling that the First Amendment protected the respondents’ expressive conduct as well as their speech.
The Court affirmed the dismissal of the tort actions, holding that “the challenged conduct, like the respondents’ protected speech, is intended to draw attention to the City’s parking enforcement operations and to persuade the PEOs to leave their positions..[and] enforcing the City’s tortious interference with contractual relations claim would violate the respondents’ First Amendment rights.”
The Court vacated and remanded on the issue of injunctive relief, however, directing the trial court to “address the issue of whether the governmental interests and factual circumstances asserted by the City in its petition are sufficient to warrant properly tailored injunctive relief” because “[e]ven protected speech is not equally permissible in all places and at all times…[and] is subject to reasonable time, place, or manner restrictions.” (quotation omitted).
Gallagher, Callahan & Gartrell, of Concord (Charles P. Bauer and Robert J. Dietel on the brief, and Bauer orally), for the petitioner.
Backus, Meyer & Branch, of Manchester (Jon Meyer on the brief and orally), for respondents James Cleaveland, Garrett Ean, Kate Ager, Ian Bernard a/k/a Ian Freeman, and Graham Colson. Respondent Pete Eyre, for himself, filed no brief.
Nixon Peabody, of Manchester (Anthony J. Galdieri on the brief), and New Hampshire Civil Liberties Union, of Concord (Gilles R. Bissonnette on the brief), for New Hampshire Civil Liberties Union, as amicus curiae. New Hampshire Municipal Association, of Concord (Stephen C. Buckley, on the brief and orally) as amicus curiae.
Jonathan Duchesne v. Hillsborough County Attorney
June 25, 2015
Reversed and remanded
The petitioners are officers of the Manchester Police Department who, in 2010, were involved in a widely publicized off-duty incident at a bar that resulted in an internal investigation and an investigation by the NH Attorney General’s Office.
The respondent, the Hillsborough County Attorney’s Office, maintains the so-called Laurie List of officers within their jurisdiction that may have exculpatory information contained within their personnel files. The list is maintained in an effort to comply with a prosecutor’s ongoing duty to disclose exculpatory information.
The petitioners, shortly after the incident in 2010, were initially disciplined by the police chief, who notified the County Attorney’s Office for placement on the Laurie List. A subsequent investigation by the Attorney General’s Office cleared the officers of wrongdoing, and after an arbitration hearing, the chief’s initial discipline was overturned. The chief asked the county attorney’s office to remove the officers’ names from the list, but the County Attorney’s Office refused, stating that there was an injured party and a sustained complaint of excessive force.
The petitioners filed suit for injunctive relief in superior court seeking the removal of the names. After a hearing, the trial court refused, reasoning that the obligation of disclosure falls on the prosecution, and that removal would require the court to “prospectively determine if the information may be exculpatory in a case that has not yet been brought.”
On appeal, the NH Supreme Court disagreed, finding that “inclusion on the Laurie List carries a stigma” and “police officers have a weighty countervailing interest in insuring that their names are not placed on the list when there are no proper grounds for doing so.” The Court then clarified and distinguished Laurie from the case at bar. It pointed out that the officer in Laurie had significant general credibility issues that would be relevant in any case and therefore justified his inclusion or disclosure going forward.
The court expressed doubt that the petitioner’s conduct would even be admissible at a criminal trial, while simultaneously acknowledging that admissibility is not a requirement for the obligation for disclosure to be triggered. The Court then went on to emphasis that in this case the initial determination was overturned by arbitration and, in light of all the facts and circumstances, it was no longer warranted that the officers remain on the list.
Milner & Krupski, of Concord (John S. Krupski on the brief and orally), for the petitioners. Hillsborough County Legal Counsel, of Goffstown (Carolyn M. Kirby on the brief and orally), for the respondent.
State v. Armando Lisasuian
June 5, 2015
In October 2010, the 14-year-old victim was living in Manchester with her mother and siblings. During that period of time, the defendant, who had recently moved out of his cousin’s apartment, had been staying with the victim’s family a few nights a week. The victim was familiar with the defendant from these and prior contacts.
The defendant was charged, among other things, with two counts of aggravated felonious sexual assault for performing digital penetration and cunnilingus when “the victim indicate[d] by speech or conduct that there [was] not freely given consent.” RSA 632-A:2, I(m).
At trial, the state presented evidence that one day during the defendant’s stay in the family home, victim returned home after school to an empty house and began watching television by herself on the couch.
At some point, the defendant returned to the home and sat on the couch with her. He began touching her by rubbing her feet and then escalated to engaging in sexual contact with her. While the victim did nothing to help or assist him in these acts, she also did not say anything or do anything to stop him. The defendant only stopped when he received a phone call.
The defendant argued to the trial court that “because the victim did not testify that she pushed the defendant away or told him to stop or took any other kind of affirmative action to express that consent was not freely given, no reasonable jury could find that those charges were proven beyond a reasonable doubt” as there was no indication “by speech or conduct” that consent was not given.
The Court rejected that argument, finding the term “conduct” to be broadly defined and to include, among other things, inaction and nonverbal behaviors. The Court held that the trial court’s findings of fact that the victim “did not give the defendant permission… did not discuss the sexual activity with the defendant… did not make any verbal sounds suggesting she was participating in the activity… [and] did not touch the defendant or physically respond to him in any way” was “sufficient for a rational trier of fact to have found beyond a reasonable doubt that the victim’s conduct, in failing to respond in any way, indicated that she did not consent to the sexual assaults by the defendant.”
In short, inaction and non-participation can be sufficient evidence of lack of consent to sexual penetration under RSA 632-A:2, I(m).
The remaining two issues were only briefly discussed by the Court. The first involved the defendant’s argument that the trial court erred in not disclosing more documents from an in camera review of the victim’s DCYF, juvenile, probation, and counseling records. After reviewing the records de novo, the Court concluded that the trial court did not unsustainably abuse its discretion in determining that the records need not disclosed. The Court also upheld the trial court’s decision to deny cross-examination of a police officer as to the nature and duration of the interrogation of the defendant because it was “relevant only to provide context for the lack of admissions [and was] dependent upon its truth – that the defendant’s nonverbal conduct was intended as an assertion by him that he did not commit the sexual assaults” and thus inadmissible hearsay.
Sarah E. Newhall, assistant appellate defender, of Concord, for the defendant. Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant attorney general), for the State.
In Re: K.H.
June 19, 2015
The original abuse and neglect petition was filed by the Division of Children, Youth and Families (DCYF) in 2009, when the child was approximately 19 months old. The petition was based on alleged domestic violence within the home between his parents, failure to maintain a clean, safe, and sanitary home, and failure to address mental health issues. A consent decree was entered shortly thereafter, placing the child in his mother’s care. DCYF supervision continued.
In 2010, the child was removed from his mother’s home and placed in foster care. Shortly after, he was placed back into his father’s care, where he remained until final placement for the next couple of years. In late 2012, following a series of incidents in the home, DCYF removed the child and placed him foster care, where he remained. After placement in foster care, DCYF worked with the respondent to develop and maintain a reunification plan, which included counseling, education, and visitation recommendations.
At a permanency hearing in 2014, the trial court recommended that a termination petition be filed due to the respondent’s failure to consistently comply with the permanency plan. At the hearing on the termination petition, DCYF produced a witness who authored a report that was admitted into evidence. The report contained, among other things, hearsay statements from the child’s foster mother concerning the child’s behavior in foster care and general statements about the child’s wellbeing.
The respondent argued that the trial court’s reliance on those statements was error, in violation of RSA 170-C:10, which governs the admissibility of evidence at termination hearings, namely that “relevant and material information of any nature, including that contained in reports, studies or examinations, may be admitted and relied upon to the extent of its probative value.”
The Court rejected the argument that the hearsay was admitted in violation of RSA 170-C:10, finding that “RSA 170-C:10 requires only that ‘the person making [the]... report’ testify at trial, unless he or she is unavailable.” The Court explained that the Rules of Evidence do not apply at termination hearings and that the statute “distinguishes between the report itself and the relevant and material information it contains.” A live witness is needed regarding the creation of the report, but not for all of the information within it.
The Court also rejected the respondent’s remaining argument that the trial court erred in terminating his parental rights, finding that the trial court’s ruling “that the respondent failed to correct the conditions leading to the neglect finding” was “neither unsupported by the evidence or plainly erroneous as a matter of law.”
The Court deferred factual determinations to the trial court, and stated that it believed the trial court properly considered the child’s best interests in determining to keep him in a “stable and permanent environment” provided by the foster parents.
Joseph A. Foster, attorney general (Laura E.B. Lombardi, senior assistant attorney general, on the memorandum of law and orally), for the petitioner. James R. Laffan, of Lebanon, by brief and orally, for the respondent.
In the Matter of Robert Kempton and Peggy Kempton
June 25, 2015
The petitioner and respondent were married for about 25 years before the petitioner filed for divorce in 2011. From 1998 until the divorce, the petitioner lived at the family home in Hollis, NH, while the respondent resided, with the couple’s children, at a house on the grounds of a museum in Massachusetts where she was an executive. The respondent and children would visit the petitioner at the Hollis home on weekends.
In 2009, the respondent was indicted for, among other things, 14 counts of larceny for embezzling over $1.3 million from the museum where she worked. She was subsequently convicted and incarcerated at a Massachusetts prison.
In 2011, while the respondent was incarcerated, the petitioner filed for divorce in New Hampshire. Both parties argued for a fault-based divorce with the petitioner asserting, among other grounds, that the respondent’s conviction qualified as fault under RSA 458:7, IV.
Prior to the final hearing, the respondent demanded to be physically present for the hearing and, ultimately, asserted a due process right to be transported from the Massachusetts prison for the divorce proceedings. She ultimately requested telephonic presence after being denied a continuance and denied an interlocutory appeal by the trial court.
After hearing, the Court awarded an unequal split of the property and ordered alimony payments from the petitioner to the respondent. The Court also found that the respondent was not at “fault” under RSA 458:7, IV, because the Court did not believe that the respondent’s conviction led to the breakdown of the marriage, namely because the contact and support between the two parties continued well after her incarceration.
On appeal, the Court affirmed all of the trial court’s rulings. As to the respondent’s claim that she “had a federal constitutional right to access the court to litigate her divorce action,” the Court concluded that, even if that were true, the “trial court did not unsustainably exercise its discretion by denying that motion.”
The Court also denied respondent’s claim that she had a right to confront her “accuser,” noting that there is no constitution right of confrontational at civil hearings. The Court found that, while there is a due process right of access to the courts, there is no due process right to a particular “means” of access.
With specific regard to the finding by the trial court that the respondent’s incarceration did not cause the breakdown of the parties’ marriage, the Court explained that the “standard of review is not whether we would rule differently than the trial court, but whether a reasonable person could have reached the same decision as the trial court based upon the same evidence.”
Although the petitioner presented alternative explanations of the meaning of the evidence presented, the Court did not find that the trial court’s conclusion was unreasonable.
As to the division of property and awarding of alimony, the Court deferred to the trial court’s findings of fact and did not find any of its rulings unsustainable.
William Aivalikles, of Nashua, by brief and orally, for the petitioner. Primmer Piper Eggleston & Cramer, of Manchester (Doreen F. Connor on the brief and orally), for the respondent.
Nashua Coliseum LLC v. City of Nashua
June 5, 2015
Coliseum is the owner of a shopping plaza in Nashua for which the city assessed a tax value of $7,659,200 for the 2011 tax year.
Coliseum timely applied to the city for an abatement of the 2011 tax and its request was denied. Coliseum then appealed the City’s denial to the superior court pursuant to RSA 76:17.
While the 2011 tax abatement appeal was pending in the superior court, the city issued a new assessment for the 2012 tax year. However, Coliseum did not apply for an abatement of the 2012 tax invoice by March 1, pursuant to the statutory guidelines. RSA 76:16, I(b).
The parties executed a settlement agreement for the 2011 tax abatement, which was approved by the court. The agreement dealt only with the 2011 tax abatement issue and provided, in part, that “the abated value agreed to by the parties shall not be deemed to be the ‘correct assessment value’ for purposes of RSA 76:17-c, and shall have no effect on assessments for subsequent tax years.”
Despite not timely filing for abatement pursuant to statute, Coliseum moved the trial court to declare that the 2012 tax abatement was properly before it under RSA 76:17-c, II. The trial court granted Coliseum’s request and this appeal followed.
The Court reversed, holding that a plain reading of RSA 76:17-c, II provides jurisdiction over a subsequent year’s abatement only if the prior year’s taxes had been “found to be incorrect.”
The Court held that “because the court did not find that the 2011 valuation was incorrect and the settlement agreement precluded such a necessary finding by the court, the statute does not apply.” Therefore, the trial court’s exercise of jurisdiction over the 2012 abatement was request was improper, and the case was remanded.
Wadleigh, Starr & Peters, of Manchester, for the petitioner. Sassoon & Cymrot, of Boston, Mass., for the respondent.
Forster’s Christmas Tree Farm & Gift Shoppe v. Town of Henniker
June 12, 2015
The petitioner operates a commercial Christmas tree farm on 100+ acres of land in Henniker, NH. The farm is located within the “rural residential” district, and the town’s zoning ordinance provides that “agriculture” and “accessory” uses are the only two permitted uses in that zone. Special exceptions exist for home businesses and bed and breakfasts, subject to limitations. The petitioner did not seek any special exceptions.
In addition to the farm, the petitioner was also operating a commercial business that made the property available for weddings, receptions, business events, and the like. In 2011 and 2012, the petitioner held less than 10 events on his property in relation to this business. In May 2012, the town issued a notice of violation to the petitioner stating that he was in violation of the zoning ordinance and that the aforementioned use was not permitted.
The owners appealed to the zoning board of adjustment. After multiple hearings, the zoning board found that the petitioners proposed uses were not accessory uses and upheld the violation notice. After being upheld again in the Superior Court, the petitioner ultimately appealed to the New Hampshire Supreme Court.
The petitioner advanced two arguments as to why his use was permitted and one argument that the zoning regulation was preempted by state law.
He first argued that his proposed uses were “agritourism” and therefore constituted “agriculture” under NH RSA 21-34-a. He argued that because the zoning ordinance defines “agriculture” use with reference to the definition of “agriculture” contained in RSA 21:34-a, if agritourism is a subset of agriculture under that statute, it must be a permitted use.
After engaging in statutory interpretation, the Court rejected the argument, holding that, even if the proposed uses did constitute agritourism, “the plain meaning of RSA 21:34-a does not provide that [agritourism uses] also constitute ‘agriculture.’”
He next argued that the town’s ordinance “is impliedly preempted” because, if it prohibits his proposed uses, it “frustrates the purpose of the aforementioned statute which defines agritourism.”
The petitioner also cited similar, but not directly connected, statutes to support his argument that the NH Legislature intended to encourage these kinds of proposed uses. The Court rejected this argument, finding that the statute merely defines terms and does not contain any mandates with which the town’s ordinance could conflict.
The Court stated that, with respect to RSA 21:34-a and the other statutes cited by the petitioner, “at most, they evince the legislature’s general intent to support traditional agriculture and agricultural activities. Moreover, they demonstrate legislative intent to allow reasonable local regulation, not to preempt the entire field.”
Finally, the Court addressed the issue of whether the petitioner’s proposed activities were accessory uses attendant to farming. The Court found that “at best, the petitioner demonstrated that, out of the approximately 4,200 farms in New Hampshire, only nine or ten farms (other than his) host commercial events similar to his proposed uses” and ultimately held that, as a matter of law, he failed to prove that his proposed uses have “commonly, habitually and by long practice been established as reasonably associated with the primary use in the local area” as required to constitute an “accessory” use.
Sheehan, Phinney, Bass & Green, of Manchester (Robert H. Miller on the brief and orally), for the petitioner. Upton & Hatfield, of Concord (Barton L. Mayer on the brief and orally), for the respondent. Michael L. Donovan, of Concord, by brief and orally, for the intervenors.