Gary E. Hicks

The case involved the Town of Seabrook appealing a decision by the New Hampshire Department of Environmental Services granting NextEra Energy Seabrook tax exemptions under RSA 72:12-a for various facilities at the Seabrook Nuclear Power Plant claimed to control air or water pollution. The court reviewed the statutory requirements that facilities must perform treatment to reduce pollution and affirmed exemptions for some listed items while reversing others that did not qualify as treatment facilities. It rejected the town's arguments for a public hearing, application of res judicata or collateral estoppel from prior exemptions, and use of an adjudicative process, finding the DES proceeding non-adversarial and noting material changes since earlier applications.

taxesenvironmentprocedure

The case concerned whether defendant Steven Forest was entitled to 1,154 days of pretrial confinement credit under RSA 651-A:23 toward his sentences for conspiracy to commit burglary and accomplice liability for burglary. Forest had been arrested on new burglary charges while on parole from a prior drug conviction and was held simultaneously on parole violation warrants; he argued that because his parole had not yet been revoked, the entire period of incarceration should count as pretrial confinement on the burglary charges. The Superior Court denied the credit, and the New Hampshire Supreme Court affirmed, holding that the time was properly credited against Forest's underlying sentence pursuant to RSA 651-A:19 and that awarding it again on the new charges would constitute impermissible double credit. The court reasoned that RSA 651-A:23 applies only when a defendant is not under a sentence of confinement, and here the incarceration was allocated to the prior sentence; it also noted that Forest had waived his right to a prompt parole revocation hearing. The sentences on the burglary charges were imposed consecutive to any parole setback.

criminal lawprocedure

This case involved a declaratory judgment action over coverage under an automobile insurance policy issued by Liberty Mutual to Rebecca Rivera's parents. Rivera was injured when her passenger grabbed the steering wheel, causing a crash; the passenger was convicted of assault, and his own insurer denied coverage. The trial court ruled that the policy's liability coverage was excluded because the passenger used the vehicle without a reasonable belief he was entitled to do so, but that uninsured motorist coverage applied despite an owned-vehicle exclusion in the policy. The New Hampshire Supreme Court affirmed, holding that state law (RSA 264:15, I) requires uninsured motorist coverage for a lawful operator of the insured vehicle regardless of policy exclusions to the contrary. The court rejected arguments that the exclusion could be harmonized with the statutes or that out-of-state precedents supported denial of coverage.

business & regulatorytorts & liabilityprocedure

The case involved petitioner David Fischer, who was arrested on second-degree assault and related misdemeanor charges and challenged superior court bail orders setting $50,000 cash bail (convertible to personal recognizance upon SCCC approval of residence) with conditions including supervision, GPS monitoring, and house arrest by Strafford County Community Corrections (SCCC), an executive-branch agency. Fischer appealed, arguing that the orders unconstitutionally delegated judicial authority to SCCC to decide his release on personal recognizance bail, violating separation of powers. The New Hampshire Supreme Court affirmed the orders, holding that SCCC's limited discretion to assess its capacity to supervise proposed residences did not constitute decision-making on bail itself, as the court retained ultimate authority and merely structured alternative consequences based on SCCC's input. The court reasoned that this arrangement reflected cooperative accommodation between branches rather than an improper delegation, noting that SCCC's role was akin to making recommendations within its expertise.

criminal lawprocedure

This case involves consolidated appeals from decisions of the New Hampshire Personnel Appeals Board regarding the terminations of two employees at the Sununu Youth Services Center following an incident in which they participated in the physical restraint of a juvenile resident. Timothy Alexander, a permanent Youth Counselor III, was dismissed for using excessive force by pushing the resident from behind without warning, leading to a takedown; the board upheld his termination, and the court affirmed that decision after reviewing the record and finding it neither unjust nor unreasonable under the applicable standard. William Harris, a probationary Youth Counselor I, was dismissed for failing to report the incident, complete an incident report, and be truthful during the investigation; the board reinstated him after finding the penalty too severe, but the court reversed that ruling on certiorari review because the board lacked authority to interfere with the appointing authority's discretion once it determined the dismissal was not arbitrary, illegal, capricious, or in bad faith.

labor & employmentprocedure

The case involved Say Pease IV, LLC and Say Pease, LLC challenging an assessment of New Hampshire's real estate transfer tax by the Department of Revenue Administration on a transfer of a 47.5% interest in a real estate holding company (TIG) made to satisfy a lender's requirement that all entities be single-purpose bankruptcy-remote entities before approving a $10.5 million mortgage. The Supreme Court of New Hampshire affirmed the superior court's reversal of the DRA's assessment, holding that the transfer was not taxable. The court reasoned through statutory interpretation that the transfer did not constitute a "contractual transfer" under RSA 78-B:1-a, II because it lacked the required bargained-for exchange, and alternatively that it qualified for exemption as a "noncontractual transfer" under RSA 78-B:1-a, III and RSA 78-B:2, IX.

taxesbusiness & regulatoryproperty

This case concerned a boundary dispute between adjoining landowners along the Little Sugar River in North Charlestown, New Hampshire, where the O’Hearnes claimed title to a disputed strip of land based on artificial monuments in the deeds, while McClammer asserted ownership extending to the river itself. The superior court ruled in favor of the O’Hearnes after a bench trial, concluding that McClammer’s claims were barred by the twenty-year statute of limitations and, alternatively, that the O’Hearnes had acquired the land by adverse possession. The New Hampshire Supreme Court affirmed, holding that the trial court’s findings regarding the predecessor’s acquiescence to the monument-based boundary were supported by the evidence and that any errors in the trial court’s analysis were harmless.

property

This case concerned a dispute between the Hollis School Board and the Hollis Education Association over whether speech-language pathologists and occupational therapists employed by the district were included in the 1976 bargaining unit represented by the association. The public employee labor relations board (PELRB) ruled that these positions were not part of the unit, as they were not listed in the original certification or the collective bargaining agreement's recognition clause defining the unit as certified full-time teachers, librarians, and guidance counselors. The New Hampshire Supreme Court affirmed, holding that the PELRB correctly interpreted the certification and clause, that past practices like using teacher contracts and salary schedules did not alter the unit's scope, and that statutory procedures under RSA 273-A:8 must be followed to modify a bargaining unit. The court rejected arguments based on parol evidence, compensation similarity, or equitable considerations, noting that the PELRB lacks authority to expand the unit without a proper petition.

labor & employment

The case involved Roscoe White appealing his convictions for first-degree murder and attempted first-degree assault after a jury trial. He argued that the trial court should have suppressed statements he made to a jailhouse informant implicating him in the shooting because the informant had improperly questioned him about separate pending drug charges in violation of his right to counsel on those charges, tainting the later statements as fruit of the poisonous tree and violating due process. The New Hampshire Supreme Court affirmed the convictions, ruling that the right to counsel is offense-specific and had not attached on the murder and assault charges at the time of the recorded conversation, so the statements about those crimes were admissible despite the violation on the drug charges. The court further held that the state's conduct did not constitute a due process violation because it did not shock the conscience or violate fundamental fairness, and the use of an informant is not per se unconstitutional.

criminal lawprocedure

In State v. Smith, the defendant was charged with manufacturing marijuana and moved to suppress evidence obtained from a police search of her home after officers conducted surveillance from a wooded area behind her property without a warrant. The trial court denied the motions, finding that the officers had not entered the home's curtilage and that their observations established probable cause for the search warrant. On appeal, the New Hampshire Supreme Court affirmed, holding that the unmaintained wooded area lacked the characteristics of curtilage—such as enclosure, domestic use, or limited access—and thus the defendant had no reasonable expectation of privacy there under Part I, Article 19 of the State Constitution. The court further concluded that the warrant application, based on the officers' detection of marijuana odors correlated with power vent activity, provided sufficient probable cause independent of any disputed property-line issues.

criminal law

The case involved Ellen St. Louis's appeal of a New Hampshire Department of Employment Security decision denying her unemployment benefits after she was terminated from Insight Technology for repeated poor soldering performance and failure to follow work procedures. The court affirmed the denial, holding that the tribunal's factual finding of misconduct was supported by the record and that St. Louis had not shown termination was due to an inability to perform the work. The core reasoning was that unemployment benefits are unavailable for employees terminated for misconduct, which includes recurring negligent acts like failing to follow known procedures despite prior good performance and medical release without restrictions; the court would not substitute its judgment for the tribunal's on evidence weight or credibility, and the two-prong misconduct test was satisfied by the repeated instances documented in disciplinary notices.

labor & employmentprocedure

The case involved Peter Eaton's appeal from convictions on multiple counts of aggravated felonious sexual assault, felonious sexual assault, and indecent exposure arising from alleged incidents between 2003 and 2005. Eaton challenged the trial court's denial of his motions for in camera review of the victim's counseling records under the Gagne standard, for production of police records, and for dismissal on speedy trial grounds under the Barker factors, as well as the sentencing on two indictments alleging alternative theories of liability. The court affirmed the convictions and the denial of the speedy trial motion, finding that much of the delay was attributable to the defendant and that prejudice was not established, but it vacated the sentence on the lesser charge because the State conceded error and remanded for further proceedings.

criminal lawprocedure

This case involved an appeal from orders of the New Hampshire Site Evaluation Committee denying a motion for declaratory judgment on whether a wet flue gas desulphurization system (scrubber) installation at the Merrimack Station power plant constituted a 'sizeable addition' requiring a Certificate of Site and Facility under RSA 162-H:5. The appellants, including ratepayer and environmental groups as well as energy companies, sought a ruling on the committee's jurisdiction over the project mandated by RSA 125-O:13. The New Hampshire Supreme Court vacated the committee's orders, holding that the committee lacked subject matter jurisdiction to issue the declaratory ruling and had no statutory authority to impose costs and fees on the moving parties. The court also addressed standing issues, finding that individual appellant Jackson Perry lacked statutory standing and that petitions from 153 individuals were insufficient to invoke jurisdiction. The decision rested on statutory interpretation limiting the committee's remedial and jurisdictional powers.

business & regulatoryenvironmentprocedure

In State v. LaPlaca, the defendant pled true to a probation violation and received a suspended prison sentence conditioned on participation in a drug court program, under an agreement that included a prospective waiver of all hearing rights for sanctions or sentence imposition upon termination. After the defendant was terminated from the program, the trial court denied his request for a hearing and imposed the full suspended sentence based on the waiver. The New Hampshire Supreme Court reversed the denial of a hearing, vacated the sentence imposition, and remanded, holding that an advance waiver of hearing rights before imposition of a suspended sentence violates state constitutional due process because it creates a serious risk of erroneous deprivation of the defendant's liberty interest and is inconsistent with fundamental fairness. The court reasoned that such a waiver effectively eliminates the state's burden to prove violations and deprives the defendant of any opportunity to contest allegations, though it left open the validity of waivers for lesser sanctions.

criminal lawprocedurecivil rights

In State v. Lopez, the defendant was convicted after a jury trial of one felony count and seven misdemeanor counts of endangering the welfare of a child under RSA 639:3, based on taking numerous photographs of an 11-year-old girl living in his household, some of which were sexually suggestive, and soliciting her to pose nude for a photograph. The defendant appealed the felony conviction, arguing that the evidence was insufficient to prove the solicitation involved a lewd exhibition of the genitals or that his request amounted to solicitation. The New Hampshire Supreme Court affirmed, holding that the evidence, viewed in the light most favorable to the State, allowed a rational jury to find that the request occurred amid a series of suggestive photos and that the object was a lewd exhibition under the Dost factors and the statutory definition of sexual activity. The court also found sufficient evidence that the defendant's actions constituted enticement by exploiting the child's modeling interest in the context of the ongoing conduct.

criminal law

The case concerned whether a disputed section of Harbor Road in Rye, New Hampshire, had become a public road by prescription or remained a private right-of-way, after the town board of selectmen decided it was private following a hearing and ceased maintenance. The petitioners, owners of properties accessed by the road, appealed the superior court's affirmance of the board's decision. The New Hampshire Supreme Court affirmed the lower court's ruling in part but vacated the portion upholding the board's determination on the road's status, holding that the board lacked subject matter jurisdiction to decide whether the road had become public by prescription because no statute granted it that authority. The court reasoned that disputes over title and easements by prescription must be resolved in superior court through declaratory judgment actions under RSA 491:22, and remanded the case for a de novo determination there.

propertyprocedure

The case concerned a contract dispute between a residential real estate developer and a construction firm hired to build a road and related infrastructure for a housing project. After the contractor refused to install a required bridge, leading to project delays, foreclosure, and lost sales, the plaintiffs sued for breach of contract, violations of the New Hampshire Consumer Protection Act, and unlawful removal of loam; the defendant counterclaimed for unpaid amounts. Multiple jury trials addressed liability and damages, with the trial court setting aside some verdicts, awarding double damages and attorney fees under the CPA, and denying a recusal motion. On appeal and cross-appeal, the court affirmed the CPA's application to the facts, the denial of recusal, the loam damages award, and the reduced attorney fees, while vacating other damages calculations and remanding for further proceedings.

business & regulatoryprocedureproperty

This case involves consolidated appeals by The Hartford Insurance Company from orders of the New Hampshire Compensation Appeals Board denying reimbursement from the State Special Fund for Second Injuries under RSA 281-A:54 for two employees with pre-existing permanent impairments who later suffered work-related injuries. The board had found that neither the bipolar disorder of one employee nor the Type II diabetes of the other constituted a hindrance or obstacle to employment, based on their successful performance in their most recent positions without accommodations. The court vacated the board's decisions and remanded for further proceedings. It held that the correct statutory test focuses on whether an employer aware of the impairment and its extent would more likely than not significantly consider it in deciding whether to hire or retain the employee, rather than on the employee's actual job performance history.

labor & employment

The case involved a criminal prosecution for aggravated felonious sexual assault in which the defendant was charged with engaging in sexual penetration with a victim alleged to be mentally defective. The defendant sought access to the victim's extensive medical and mental health records, and the trial court ordered that complete sets of the records be provided directly to both parties' counsel without an in camera review, while requiring counsel to flag potentially relevant portions for later admissibility hearings. The State petitioned for a writ of certiorari, arguing that the records were protected by physician-patient and psychotherapist-patient privileges. The New Hampshire Supreme Court reversed, holding that the trial court erred by failing to conduct an in camera review to determine whether the privileges should be pierced; it remanded for that review after confirming that the defendant had made the required initial showing of a reasonable probability that the records contained material and relevant information. The court reasoned that the privileges are not automatically waived simply because the State brings charges and that essential need must be established before disclosure.

criminal lawprocedure

The case involved Joseph Michaud, who was convicted after a jury trial of four counts of felonious sexual assault for touching the breasts of a child under thirteen years old on multiple occasions. The defendant appealed the trial court's denial of his request for a jury instruction on the lesser-included offense of simple assault, arguing that the evidence of tickling supported such an instruction. The New Hampshire Supreme Court affirmed the conviction, holding that simple assault is not a lesser-included offense of felonious sexual assault because the latter does not require proof of lack of consent or unprivileged contact, elements that are necessary for simple assault. The court reasoned that a comparison of the statutory elements shows that simple assault includes elements not embraced within the felonious sexual assault statute.

criminal law