New Hampshire Supreme Court
Cases Accepted - May 1998
* denotes appealing parties
97-018 Werlinger,* Laura A., Petition of
(department of human services)
Karen L. Rosenberg for Ms. Werlinger
Attorney General
Food stamps - overpayment; whether state can require
appellant to repay amount she was overpaid in food
stamp benefits; retrospective application of federal
Work Responsibility Act of 1996
97-354 State of NH v. Therrien,* Robert
Attorney General James E. Duggan
Mark F. Sullivan
Aggravated felonious sexual assault - admission of
other bad acts alleged by victim; exclusion of evidence
that defendant had been acquitted in Maine of
committing other bad acts
97-632 Magistro,* Francis, Appeal of
(workers' compensation appeals board)
C. Kevin Leonard for the claimant
Andrew A. Merrill for Durgin & Crowell Lumber Co.
Attorney General
Workers' compensation - whether board erred by
rejecting uncontroverted opinion of treating physician
and by failing to cite any competing medical evidence
to explain its rejection; whether back injury was
caused by altercation at work and was disabling;
whether work altercation caused pre-existing knee
condition to become disabling
97-797 State of NH v. Meissner,* Susan
Attorney General Scott W. Flood
Speeding - license revocation; whether court erred by
revoking driver's license under RSA 263:57 for speeding
violation; imposing more severe penalty after defendant
asserted her right to trial; lack of notice;
sufficiency of evidence to support revocation; whether
enactment of RSA 259:39 supersedes RSA 263:57; whether
RSA 263:57 is unconstitutional delegation of
legislative authority
97-845 Phetteplace,* Gary v. Town of Lyme
E. and Karen C. Carolyn W. Baldwin
R. Peter Decato
Property tax abatement - whether tax appeal to superior
court was untimely; estoppel
97-894 McDill, William D. v. Environamics
Christopher E. Grant Corporation,*
Roxana Marchosky
David Wolowitz
Suzanne M. Woodland
Breach of employment contract - wrongful discharge;
failure to permit defendant to argue that plaintiff
would have been discharged for reading and removing
confidential document; failure to give curative jury
instruction to disregard statements regarding selective
enforcement
98-003 State of NH v. Hammell,* Michael L.
Attorney General Pro se
Driving after certification as a habitual offender -
motion for new trial; ineffective assistance of
counsel; denial of motion for default judgment; failure
to hold evidentiary hearing; whether State's objection
contained misrepresentations
98-014 State of NH v. Russell,* Alan
Attorney General Mark H. Campbell
Driving while intoxicated - whether defendant is time-
barred from collaterally attacking constitutional
validity of conviction for driving while intoxicated by
seeking to withdraw his plea
98-016 American Express Travel v. Moskoff,* David
Barry I. Harkaway David W. Rayment
William B. Pribis
Collection action - default judgment; whether court
erred in not vacating conditional default when
defendant answered plaintiff's interrogatories within
ten days; whether court erred in entering final default
based upon adequacy of answers; due process
98-044 West,* Christie v. Turchioe, Thomas
Mike J. Demers J. Daniel Marr
Promissory note - consideration of extrinsic evidence;
whether court erred in ruling that defendant was
obliged to pay note only if plaintiff did not have
miscarriage, abortion, or place child for adoption;
whether court's ruling that defendant was only obliged
to pay note in case of miscarriage, abortion, or
adoption is against public policy
98-059 State of New Hampshire Judicial Branch,* Petition of
(retirement system board of trustees)
Attorney General
Jane Emperor, pro se
Peter T. Foley for NH Retirement System
Retirement benefits - whether board erred in concluding
judicial branch was at fault in not enrolling employee
in retirement system; whether board erred in failing to
re-open case based on newly discovered evidence
98-068 Town of Nelson* v. NH Department of
William J. Robinson Transportation
Attorney General
Unfunded state mandate - reclassification of highway;
whether state imposed new responsibility upon town that
has not been fully funded nor approved by town voters;
whether RSA 228:27 & :36 are unconstitutional; cross-
appeal - whether town's failure to timely appeal
commissioner's actions or reclassification letter bars
this challenge to reclassification of Route 9 to town
road status
98-110 AMRESCO New England, L.P. v. Gallagher, Charles A.
d/b/a AMRESCO New England John E. Lyons
Limited Partnership,
successor in interest to
AMRESCO New England, Inc.*
Gregory D. Wirth
Promissory note - whether payment on demand note
extended statute of limitations or revived note;
whether admissions of liability on note extended
statute of limitations; whether State statute of
limitations had already run when FDIC was appointed
receiver
98-111 AMRESCO New England, L.P. v. Gallagher, Charles A.,
d/b/a AMRESCO New England Charles A. Gallagher
Limited Partnership, Trust dated May 22,
successor in interest to 1987, Charles A.
AMRESCO New England, Inc.* Gallagher and Paula
Gregory D. Wirth J. Gallagher, Trustees
John E. Lyons
Fraudulent conveyance - whether court erred in
dismissing action in light of RSA 545-A:9, I, case law
concerning accrual of causes of action, case law
concerning fraudulent concealment, and the provisions
of FIRREA
98-115 State of NH v. Spiewak,* Jeffrey
Attorney General James L. Duggan
Leonard D. Harden
Resisting arrest, intentionally contributing to
delinquency of a minor - whether prosecutor's opening
statement to jury violated right against self-
incrimination or altered burden of proof
98-123 In re Estate of David R. Pratt
David M. Tower for Elaine M. Pratt*
Jennifer Roth for the estate
Attorney General
Legacy and succession taxes - statute of limitations;
whether RSA 556:5 bars objection to executor's final
account filed more than one year after grant of
administration; whether RSA 86:6 requires legacy and
succession taxes to be paid on joint bank account
closed by joint owner immediately prior to death;
whether tax should be paid by estate pursuant to
decedent's will
98-125 State of NH v. Hayford,* Jon C.
Attorney General James E. Duggan
Janice S. Peterson
Felon in possession of dangerous weapon - whether RSA
chapter 159 prohibits felon from possessing black
powder pistol with percussion ignition that does not
utilize center or rim fire cartridges
98-131 Cicchetto,* Kim M. v. Cicchetto, Russell Edward
Douglas C. Gray Ronald P. Indorf
Divorce - failure to rule on requests for findings and
on matters raised in motion for reconsideration;
whether court erred in dividing parties' assets;
attorney's fees
98-136 Perron,* Robert, Appeal of
(workers' compensation appeals board)
A.G. O'Neil, Jr. for the claimant
James E. Owers for Aavid Engineering, Inc.
Michael Mortimer for Personnel Connection
Attorney General
Workers' compensation - whether injuries were causally
related to employment; whether board erroneously
altered claimant's burden of proof; failure of board to
address issues of stabilization and extraordinary
trauma-inducing event; sufficiency of evidence
98-143 State of NH* v. Sullivan, Brian
Attorney General Bruce Kenna
Negligent homicide, second degree assault - whether
court erred by excluding evidence of blood alcohol
concentration test results; whether defendant was
deprived of meaningful opportunity to obtain an
independent test of blood samples
98-147 State of NH v. Crosby,* Thomas
Attorney General James E. Duggan
Stuart Dedopoulos
Aggravated felonious sexual assault - numerous issues
including denial of view; refusal to review records in
camera; conducting voir dire outside of physical
presence of defense counsel; sufficiency of evidence;
denial of mistrial on numerous grounds; improper
closing argument; improper jury instructions;
consideration of improper matters at sentencing
98-149 Fall Mountain Teachers Association, NEA-New Hampshire,*
Appeal of
(public employee labor relations board)
James F. Allmendinger for petitioner
Edward M. Kaplan for school district
Attorney General
Public employee collective bargaining - whether the
recommendations of a neutral factfinder should be
placed on the official ballot without amendment for a
vote pursuant to RSA 40:13, IV
98-159 State of NH v. Bourque,* Christopher
Attorney General James E. Duggan
Byry D. Kennedy
Sale of counterfeit drug - sufficiency of evidence that
defendant represented green vegetative matter to be
hashish
98-161 State of New Hampshire,* Appeal of
(department of safety)
Attorney General
Stephen Jeffco for Daniel MacKenzie
Administrative license suspension - whether hearing
officer erred in ruling he was without jurisdiction
because ALS report form allegedly did not constitute a
"sworn report"; whether hearing officer erred in
finding that ALS report was not a "sworn report"
98-177 State of NH v. Donnelly,* Jeanne
Attorney General Philip Desfosses
Forgery - denial of discovery; denial of right to
confront accusers; whether court erred by allowing
witnesses to testify after they asserted right to
remain silent regarding issues critical to defense
98-183 State of NH v. Baxter,* Todd S.
Attorney General James E. Duggan
Tony Hutchins
Driving after certification as a habitual offender -
failure of court to instruct jury on lesser-included
offense of driving after suspension
98-260 State of NH* v. Embree, Corey
Attorney General David Bownes
A.G. O'Neil
Second degree murder - mens rea; whether State must
prove for accomplice liability that the accomplice
purposely promoted or facilitated the commission of
reckless and/or knowing second degree murder
98-288 Rockingham County Sheriff's Department,* Appeal of
(workers' compensation appeals board)
Stephen J. Schulthess for the county
Gary Bernier for the claimant
Attorney General
Workers' compensation - whether employee suffered work-
related injury; whether employee had pre-existing
weakness in his back; whether employee's work stress
was greater than non-work stress; whether board erred
in granting disability benefits; whether board erred by
construing all reasonable doubts in favor of employee
98-322 Request from the Senate for an Opinion of the Justices
(Constitutionality of plans to provide adequate public
education)
Request by Senate for opinion of constitutionality of
two bills relating to funding and providing adequate
public education
Note: The court has consolidated 98-110 and 98-111.