Richard E. Galway

The case concerned whether several New Hampshire statutes increasing counties' financial responsibilities for long-term care of the indigent elderly and disabled violated Part I, Article 28-a of the state constitution, which bars unfunded mandates. The statutes included extensions of a sunset provision from SB 409, an increase in the counties' share of nursing home and home-based care costs under chapter 263, and a 2005 rise in Local Medical Assistance Contribution payments. The trial court granted summary judgment to the State, and the Supreme Court affirmed, holding that the obligations either predated the constitutional amendment, had been approved by the counties, produced no net increase in county expenditures due to offsetting provisions, or were not yet ripe for review. The court reviewed the statutes de novo, presumed their constitutionality, and found no clear and substantial conflict with Article 28-a.

healthcaretaxes

This case arose when the Libertarian Party of New Hampshire challenged RSA 654:46, a statute requiring the Secretary of State to provide certain voter lists to qualifying political parties, arguing that it was unconstitutional. The trial court agreed, declared the statute unconstitutional, and later issued an equitable remedy that barred further distribution of the lists but did not require the New Hampshire Democratic Party to return profits from prior sales. The New Hampshire Republican State Committee, which had not participated in the earlier proceedings, intervened and appealed the remedy, contending that the Democratic Party should be required to disgorge any funds obtained from selling the lists. The New Hampshire Supreme Court dismissed the appeal, holding that the Republican committee lacked standing because it had not demonstrated any legal injury from the remedy and the relief it sought primarily benefited another party that had chosen not to pursue it.

electionsprocedure

The case involved property owners who constructed a garage on their land near Canobie Lake in Windham after obtaining a building permit, only to face challenges when abutters argued it violated the town's Wetlands and Watershed Protection overlay district (WWPD) ordinance prohibiting such structures. The Zoning Board of Adjustment initially granted an equitable waiver under RSA 674:33-a allowing the garage to remain despite the infringement, but the superior court reversed that decision, and the New Hampshire Supreme Court affirmed the reversal. The court held that the WWPD provision creates a use restriction rather than a dimensional or physical layout requirement, as it establishes an autonomous overlay district barring permanent buildings within its boundaries to protect wetlands, and the statute explicitly prohibits waivers from use restrictions. The analysis distinguished the WWPD from incidental setbacks by noting its independent purpose and the ordinance's separate setback rules from the district itself.

propertyenvironment

The case involved a juvenile, Kirsten P., who appealed the denial of her motion to dismiss a delinquency petition after a prior petition was dismissed without prejudice due to improper service on her legal custodian. The juvenile argued that the statutory 30-day limit for holding an adjudicatory hearing under RSA 169-B:14, II began running from her first arraignment and had expired by the time of the scheduled hearing on the refiled petition. The court affirmed the denial, holding that the time limit restarts upon arraignment on a second petition when the original petition is dismissed at the juvenile's request. The reasoning drew on the statute's purpose of protecting juveniles' rights to expeditious resolution while distinguishing this scenario from cases where the state seeks to circumvent time limits, analogizing to speedy trial principles that allow restart after a defendant-initiated dismissal.

criminal lawfamily lawprocedure

In State v. Formella, the defendant, a high school student, was convicted after a bench trial of criminal liability for the conduct of another under RSA 626:8 for agreeing to serve as a lookout while others stole math exams from a school, even though he later left the scene without completing that role or alerting authorities. The New Hampshire Supreme Court affirmed the conviction on appeal, holding that the evidence was sufficient to prove the defendant did not terminate his accomplice liability. The court interpreted the statute to require that, to avoid liability, an accomplice must not only end his complicity before the offense but also wholly deprive it of effectiveness, which generally necessitates communicating the withdrawal to the principals so they know their aid has been withdrawn. Because the defendant merely abandoned his post without informing the thieves, a rational factfinder could conclude his actions did not meet this standard.

criminal law

The case involved plaintiff Jose Hilario's legal malpractice suit against his former criminal defense attorney, Neil Reardon, alleging that the attorney filed an unauthorized motion to withdraw Hilario's guilty pleas, which caused the State to oppose and the court to deny his later motion to suspend part of his sentence under the plea agreement. The trial court dismissed the complaint under Mahoney v. Shaheen, which requires a showing of actual innocence for certain criminal malpractice claims. On appeal, the New Hampshire Supreme Court reversed, holding that Mahoney does not bar the claim because the alleged malpractice occurred after the plea and sentencing, was unrelated to any strategic decisions about the convictions or the plaintiff's guilt, and did not assert that a different criminal outcome would have resulted. The court reasoned that the actual-innocence requirement applies only to malpractice claims tied to challenging a conviction or averting indictment, not to post-plea conduct that merely disrupts a separate sentencing agreement. The matter was remanded for further proceedings.

criminal lawtorts & liability

In State v. Pratte, a convicted felon was tried and convicted for possessing a bow and arrows as a deadly weapon under RSA 159:3 after evidence showed he had used them to kill a porcupine on his property. The trial court denied his motion for judgment notwithstanding the verdict, but the New Hampshire Supreme Court reversed the conviction. The court held that RSA 625:11, V requires proof that the object was used, intended to be used, or threatened to be used in a manner known to be capable of causing death or serious bodily injury to a human, and that evidence of killing an animal does not meet this element because it would render the statute unconstitutionally vague. The decision turned on statutory interpretation of the deadly-weapon definition and the insufficiency of the State's evidence to satisfy the human-harm requirement.

criminal law

In State v. Legere, the defendant was convicted by a jury of second-degree murder after a fatal shooting during a melee outside a bar involving rival motorcycle club members. On appeal, he challenged the trial court's admission of a witness's prior identification of him from a photo lineup and another witness's testimony about a third party's statements regarding safety concerns, arguing violations of confrontation rights under the state constitution and hearsay rules. The court affirmed the convictions, applying the Roberts standard to find the identification admissible and ruling that the state-of-mind exception to hearsay permitted the other testimony while noting that federal Crawford claims were unpreserved. The decision rested on the trial court's discretion in evidence rulings and the defendant's failure to raise specific objections at trial.

criminal lawprocedure

In State v. Gubitosi, the defendant was convicted after a jury trial of three counts of harassment under RSA 644:4 and one count of stalking under RSA 633:3-a, based on repeated unwanted calls and contacts with a former romantic partner. On appeal, he challenged the trial court's jurisdiction, arguing that the Belknap County deputy prosecutor lacked authority because he had not been formally appointed by the court under RSA 7:33 or RSA 661:9, III, and he also argued that the harassment conviction under the "coarse language" provision of RSA 644:4, I(b) should be reversed as unconstitutionally overbroad. The New Hampshire Supreme Court affirmed the convictions, holding that the prosecutor had authority to proceed without a court appointment because the statutes did not require one in this situation of perceived conflict of interest, and that RSA 644:4, I(b) was not overbroad because it narrowly targeted repeated communications at inconvenient hours or with offensive language made with intent to annoy or alarm. The court distinguished the provision from other subsections previously struck down and found it sufficiently limited in scope.

criminal lawprocedurefree speech

The case involved a mother's CHINS petition under RSA ch. 169-D alleging that her six-year-old son was a child in need of services due to behaviors such as threats of harm, animal cruelty, and assaults while in foster care. The family division dismissed the petition, finding it alleged delinquent acts that are statutorily barred from CHINS proceedings under RSA 169-D:5, IV and lacked required specificity as to dates and times. The New Hampshire Supreme Court affirmed, holding that the plain language of the CHINS and delinquency statutes (RSA ch. 169-B) creates non-overlapping categories, with CHINS limited to non-delinquent conduct, and that the legislature did not intend to cover all possible child behaviors through these mechanisms. The court treated the appeal as a petition for certiorari and rejected arguments that competency issues or other procedural matters barred review.

criminal lawfamily lawprocedure

The case involved homeowners who sued their construction contractors for breach of contract after the builders stopped work on a house due to a payment dispute, claiming the work was not done to specifications; the builders counterclaimed for unpaid amounts under the contract and for unjust enrichment. A jury found for the builders and awarded damages, which the trial court reduced slightly, and denied the homeowners' post-trial motions arguing that lien waivers barred the claims and that evidence was insufficient. On appeal, the court affirmed, ruling that the lien waivers released only mechanic's lien rights and specific invoiced amounts but did not act as general releases barring all payment claims, that the builders' testimony provided sufficient evidence for the jury, and that any discovery noncompliance did not prejudice the homeowners. The court also rejected arguments that the trial court mishandled motions to dismiss and for JNOV.

business & regulatorypropertyprocedure

In State v. Gibbs, the defendant appealed the imposition of a suspended sentence from a 2004 drug possession conviction after he was acquitted by a jury of related 2006 charges including assault and resisting arrest. The trial court found by a preponderance of the evidence that the defendant had violated the good behavior condition of his suspended sentence and imposed six months, relying on evidence from the criminal trial while noting the separate nature of the proceedings and lower burden of proof. The New Hampshire Supreme Court affirmed, holding that consideration of acquitted conduct is permissible when imposing a suspended sentence because that action is remedial rather than punitive, distinguishing it from the sentencing enhancement at issue in State v. Cote. The court further rejected the defendant's due process claim, explaining that the differing standards of proof meant the trial court's finding did not undermine the jury verdict.

criminal lawprocedure

This case involved abutters appealing a superior court order that upheld a town zoning board's grant of use and area variances to Omnipoint Communications to construct a wireless telecommunications tower in an agricultural-residential zone. The New Hampshire Supreme Court affirmed the decision, holding that the zoning board had not improperly allowed the federal Telecommunications Act to preempt local variance criteria and that substantial evidence supported findings on all five required variance factors, including no diminution in surrounding property values, consistency with the ordinance's spirit, and service to the public interest. The court reasoned that the board had properly weighed expert testimony, site studies, coverage gap evidence, and mitigation conditions such as reduced height and vegetative screening while correctly applying state law standards. The board's factual determinations were deemed prima facie reasonable, and the petitioners failed to meet their burden to show unreasonableness or legal error.

propertyfederal power

The case involved a dispute over a real estate and personal property sales agreement in which the buyers defaulted after failing to sell their home, prompting the sellers to retain the $25,000 deposit under a liquidated damages clause while also suing for additional carrying costs and other damages from the breach. The trial court granted summary judgment to the buyers, and the New Hampshire Supreme Court affirmed. The court held that the liquidated damages provision was enforceable because the anticipated damages were uncertain, the contract language showed an intent to liquidate damages in advance, and the stipulated amount was not disproportionate to the presumed loss. It further ruled that the sellers' retention of the deposit for over a year without offering to return it constituted a binding election of the liquidated damages remedy, precluding recovery of actual damages.

propertybusiness & regulatory

The case involved Peter Johnson's appeal of his conviction for driving while intoxicated, second offense, based on a traffic stop where he refused a breath test after arrest but later sought to recant the refusal. The defendant argued that the trial court erred by rejecting his proposed jury instructions on refusal and recantation and by giving instructions that improperly limited when a recantation could negate an inference of guilt. The New Hampshire Supreme Court affirmed the conviction. It held that trial courts have discretion over jury instructions provided they accurately state the law and fairly cover the issues, and found no error in the instructions given or the handling of the jury's question during deliberations.

criminal lawprocedure

The case involved Great Traditions Home Builders, Inc. appealing the dismissal of its eviction action against tenant Marie O'Connor, who was a tenant at will in the plaintiff's apartment complex. The plaintiff served an eviction notice citing the tenant's statements accusing the company president of entering her apartment and taking items, but the trial court dismissed the action for failure to provide the prior written notice required by RSA 540:2, III when evicting for "other good cause" based on a tenant's actions. The New Hampshire Supreme Court affirmed the dismissal, holding that the statute's plain language mandates such notice without exception for the type or curability of harm alleged, and that the requirement serves to warn tenants of potential future eviction for continued conduct rather than allowing immediate eviction based on past actions alone. The court further reasoned that this interpretation aligns with the broader statutory scheme distinguishing grounds for eviction that require prior notice from those that do not.

propertyprocedure

The case involved a property owner, Nine A, LLC, seeking zoning variances from the Town of Chesterfield to subdivide a six-acre lakeside parcel into seven smaller lots and to develop a cluster of single-family homes and duplexes, which did not meet minimum lot size and frontage requirements in the Spofford Lake District. The Zoning Board of Adjustment denied the variance applications, a decision affirmed by the superior court, and the New Hampshire Supreme Court upheld that ruling. The court reasoned that granting the variances would be contrary to the public interest and inconsistent with the spirit of the zoning ordinance, which aimed to reduce building density around the lake through larger lot sizes and frontage requirements to prevent overcrowding and preserve the area's character. The proposals resembled prohibited cluster developments on insufficient acreage and would undermine the ordinance's goals, despite comparisons to preexisting nonconforming lots developed before the district's creation.

property

In State v. Sideris, the defendant was charged with felony theft by deception and a violation of the New Hampshire Consumer Protection Act after accepting a $4,000 deposit for roofing work, failing to obtain insurance or permits, not performing the work or returning the funds, and providing inconsistent explanations to the customer and police. A jury acquitted him on the theft charge but convicted him on the CPA count, leading to a sentence of twelve months in jail, two years of probation, a suspended $2,000 fine conditioned on $4,000 restitution, which the defendant did not pay. The court affirmed the conviction, holding that the information sufficiently alleged a deceptive act under RSA 358-A:2 and that evidence of the defendant's conduct met the "rascality" standard for a CPA violation, but it vacated the sentence as plain error under State v. Hancock because the trial court lacked authority to impose both maximum penalties and probation without retaining enforcement power, and remanded for resentencing.

criminal lawbusiness & regulatory

The case involved the State challenging the dismissal of an indictment against Victor Laporte for endangering the welfare of a child by soliciting a minor under 16 for sexual intercourse. The superior court dismissed the indictment, finding it defective for failing to allege the purposeful mental state required under the general criminal solicitation statute. The New Hampshire Supreme Court reversed, ruling that the specific child endangerment statute only requires a "knowingly" mens rea for the solicitation element, not the additional purposeful intent from the general solicitation law, based on the plain language and structure of the statute.

criminal law

The case involved a dispute between insurance broker Clark & Lavey Benefits Solutions (C&L) and client Education Development Center (EDC) over C&L's commissions on group insurance policies and alleged failures to disclose standard rates. EDC counterclaimed for breach of fiduciary duty, misrepresentations, and violations of the Massachusetts Consumer Protection Act, while C&L sued for breach of contract and misrepresentations; the jury found both liable and awarded net damages to C&L. The New Hampshire Supreme Court affirmed the trial court's rulings, holding that jury instructions on the consumer protection claim were not erroneous or properly objected to, that evidence supported denying C&L's directed verdict motion on the fiduciary issue, and that EDC's post-trial request for full commission forfeiture was untimely and unpreserved. The court reasoned that the parties' course of dealing and C&L's advertising created a factual question for the jury on fiduciary duties, and that EDC had only sought the difference in commission rates during trial.

business & regulatoryproceduretorts & liability