Articles Posted in Civil Rights

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Defendants were all arrested and convicted of violating a Laconia Ordinance prohibiting nudity in public places. They jointly moved to dismiss the charges against them, arguing the ordinance violated the guarantee of equal protection and their right to free speech under the State and Federal Constitutions. They further contended that the City of Laconia lacked the authority to enact the ordinance and that the ordinance was preempted by RSA 645:1 (2016). Finally, defendants maintained that the ordinance violated RSA chapter 354-A. Following a hearing, the court denied the defendants’ motion, and subsequently found them guilty of violating the ordinance. The New Hampshire Supreme Court agreed with the trial court that the ordinance merely prohibited those who access public places from doing so in the nude, and made a permissible distinction between the areas of the body that must be covered by each gender. Accordingly, their convictions were affirmed. View "New Hampshire v. Lilley" on Justia Law

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Petitioner Kyle Guillemette challenged a determination by the Administrative Appeals Unit (AAU) of the New Hampshire Department of Health and Human Services (DHHS) that the notice requirements set forth in RSA 171-A:8, III (2014) and New Hampshire Administrative Rules, He-M 310.07 did not apply when Monadnock Worksource notified Monadnock Developmental Services of its intent to discontinue providing services to petitioner because that act did not constitute a “termination” of services within the meaning of the applicable rules. Petitioner received developmental disability services funded by the developmental disability Medicaid waiver program. MDS was the “area agency,” which coordinated and developed petitioner’s individual service plan. Worksource provides services to disabled individuals pursuant to a “Master Agreement” with MDS. Worksource began providing day services to the petitioner in August 2012. On March 31, 2017, Worksource notified MDS, in writing, that Worksource was terminating services to petitioner “as of midnight on April 30.” The letter to MDS stated that “[t]he Board of Directors and administration of . . . Worksource feel this action is in the best interest of [the petitioner] and of [Worksource].” Petitioner’s mother, who served as his guardian, was informed by MDS of Worksource’s decision on April 3. The mother asked for reconsideration, but the Board declined, writing that because the mother “repeatedly and recently expressed such deep dissatisfaction with our services to your son, the Board and I feel that you and [petitioner] would be better served by another agency . . . .” Thereafter, petitioner filed a complaint with the Office of Client and Legal Services alleging that his services had been terminated improperly and requesting that they remain in place pending the outcome of the investigation of his complaint. Because the New Hampshire Supreme Court concluded that the AAU’s ruling was not erroneous, it affirmed. View "Petition of Kyle Guillemette" on Justia Law

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Farmington School District appealed a Board of Education (state board) decision reversing the decision of the Farmington School Board (local board) not to renew the employment contract of Demetria McKaig, a guidance counselor at Farmington High School. In November 2012, a student (Student A) and her boyfriend told McKaig and another guidance counselor that Student A was pregnant and that she wanted to terminate her pregnancy. Student A was fifteen years old at the time. McKaig suggested that Student A tell her mother about the pregnancy, but Student A refused. The principal expressed his view that the school should inform Student A’s mother about the pregnancy. McKaig disagreed, asserting that Student A had a right to keep the pregnancy confidential. McKaig spoke with Attorney Barbara Keshen of the New Hampshire Civil Liberties Union about Student A’s situation. Keshen’s opinion was that the judicial bypass law protected the confidentiality of Student A’s pregnancy and the fact that she was contemplating an abortion. McKaig relayed this opinion to Student A, and Student A made an appointment with a health center and another attorney to assist her with the judicial bypass proceedings. Meanwhile, the principal instructed the school nurse to meet with Student A to tell her that the school would inform her mother about her pregnancy. McKaig told the principal about her conversation with Keshen and urged him to contact Keshen to discuss Student A’s rights. The principal did not contact Keshen; however, Keshen contacted him. He told Keshen that the parental notification and judicial bypass laws did not prevent him from telling Student A’s mother about the pregnancy. Keshen instituted a petition for a temporary restraining order (TRO) against the principal to prevent him from contacting Student A’s mother. McKaig was named as the petitioner “ON BEHALF OF [Student A]”; she was not named in her individual capacity. The TRO was ultimately granted. Months later, McKaig received a notice of nonrenewal from the superintendent; in the written statement of the reasons for non-renewal, the superintendent listed three reasons: insubordination, breach of student confidentiality, and neglect of duties. After the hearing, the local board upheld McKaig’s nonrenewal on those grounds. McKaig appealed to the state board, which found, pursuant that the local board’s decision was “clearly erroneous.” The state board reversed the local board’s decision to uphold McKaig’s nonrenewal, but it did not order McKaig’s reinstatement or any other remedy. McKaig cross-appealed the state board’s decision and argued that she was entitled to reinstatement with back pay and benefits. The Supreme Court affirmed the state board’s reversal of the local board’s decision, and ordered that McKaig be reinstated to her former job. The case was remanded to the state board for further proceedings to determine whether she was entitled to additional remedies. View "Appeal of Farmington School District" on Justia Law

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Plaintiffs Nichole Wilkins and Beverly Mulcahey sued their former employer, Fred Fuller Oil Company, Inc. (Fuller Oil), for sexual harassment and retaliation. Plaintiffs also sued Frederick J. Fuller, an employee of Fuller Oil, individually Prior to trial, defendant sought to prohibit plaintiffs from asserting claims against him under RSA chapter 354-A in his individual capacity. The district court thereafter informed the parties that it would not allow plaintiffs to assert such claims. Subsequently, Fuller Oil filed for bankruptcy protection and, therefore, the case against Fuller Oil was stayed; the case was reopened as to claims against defendant. Because the questions of whether an employee could recover damages from another employee for aiding and abetting sexual harassment or for retaliation under RSA chapter 354-A concerned unresolved issues of New Hampshire law, the United States District Court for the District of New Hampshire certified two questions of New Hampshire law to the New Hampshire Supreme Court: (1) whether sections 354-A:2 and 354-A:7 of the New Hampshire Revised Statutes imposed individual employee liability for aiding and abetting discrimination in the workplace; and (2) whether section 354-A:19 of the New Hampshire Revised Statutes imposed individual employee liability for retaliation in the workplace. The New Hampshire Supreme Court answered both questions in the affirmative. View "U.S. Equal Employment Opportunity Comm'n v. Fred Fuller Oil Company, Inc." on Justia Law

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Plaintiff David Eldridge was a resident and condominium owner at the Whip-Poor-Will Condominium Complex in Hudson. The condominium complex was governed by two different entities: the Condominium Owners' Association (COA) and the Rolling Green at Whip-Poor-Will Townhouse Owners' Association (TOA). Each association had separate and distinct legal obligations as set forth in the Condominium Declaration. Plaintiff has several disabling impairments that impact his mobility. When a walkway had not been repaired as he requested, plaintiff filed a charge of discrimination against the COA with the New Hampshire Human Rights Commission (HRC). Shortly thereafter, the COA repaired the plaintiff's walkway. The HRC, which continued to investigate the matter despite the repair, determined that there was probable cause to support a finding of discrimination and notified the COA that it had scheduled a public hearing on the complaint. The COA subsequently removed the case to superior court and filed a motion to dismiss on numerous grounds. As relevant to this appeal, the COA argued that plaintiff's discrimination complaint should be dismissed because the HRC had not commenced proceedings within twenty-four months after the filing of the charge of discrimination, as required by statute. The Superior Court denied the COA's motion to dismiss, concluding that the twenty-four month limit specified in the statute was not jurisdictional. The COA then filed a motion for summary judgment, asserting that: (1) the case was moot because the walkway had been repaired; (2) the COA was not an entity covered by the Human Rights Act; (3) the plaintiff's claim was time-barred; (4) there was no dispute that the COA had accommodated the plaintiff; and (5) the COA had no legal obligation or authority to replace the walkway because it was located in a Townhouse Limited Common Area. The Superior Court (Temple, J.) granted the COA's motion for summary judgment on the ground that, under the plain language of the Declaration, the COA lacked authority over plaintiff's walkway and, as such, plaintiff had pursued the wrong party in seeking an accommodation. Plaintiff filed a motion for reconsideration in which he asserted, for the first time, that because the COA had arranged for the walkway to be repaired, it had authority to repair the walkway. The court denied plaintiff's motion, reaffirming its earlier determination that the TOA, not the COA, had sole control over the walkway, and refusing to consider both plaintiff's theory regarding the COA's "assumed" authority over the walkway and any "new evidence" in support thereof. This appeal and cross-appeal followed. The Supreme Court concluded that plaintiff's complaint was untimely under RSA 354-A:21, III, and as such, affirmed dismissal of his case. View "Eldridge v. Rolling Green at Whip-Poor-Will Condo. Owners Ass'n" on Justia Law

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In consolidated cases, petitioner Gregory DuPont, appealed: (1) a circuit court order affirming the revocation by the respondent City of Nashua (City), through its chief of police, of his license to carry a loaded pistol or revolver; and (2) a Superior Court order denying his motion for preliminary injunctive relief in a proceeding brought against respondents Peter McDonough, Sean Haggerty, Christopher Casko, and John Barthelmes, challenging the denial of his request for an armed security guard license. In 1998, the petitioner was convicted in Massachusetts of operating a motor vehicle under the influence of liquor, a misdemeanor that carried a potential maximum prison sentence of two and a half years. Petitioner’s 1998 conviction rendered him ineligible, under Massachusetts law, to possess or carry a firearm, at least as of the 1998 amendments to the Massachusetts firearms laws. In 2005, upon the petitioner’s petition for review, the Massachusetts Firearm Licensing Review Board (FLRB) found that the petitioner was “a suitable person to possess a license to carry firearms, and his right to possess a firearm therefore is fully restored in the Commonwealth.” In 2007, the City’s chief of police issued the petitioner a license to carry a pistol or revolver, and that license was renewed in 2012. In 2009, the New Hampshire Department of Safety (DOS) issued the petitioner an armed security guard license. Sometime prior to June 29, 2010, Sergeant Lobrano of DOS became aware of the 1998 conviction and determined that it disqualified the petitioner, under federal law, from possessing firearms. Accordingly, Lobrano notified the petitioner that he was revoking the petitioner’s armed security guard license. On the same day, Lobrano issued the petitioner an unarmed security guard license. The petitioner appealed Lobrano’s decision to a hearings examiner, who upheld it. In 2011, while the parties were awaiting decision on their cross-motions for summary judgment, DOS’s attorney, respondent Casko, offered the petitioner a settlement. The petitioner agreed to the terms of the offer and the case was non-suited. In February or March 2013, petitioner applied to the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for a Curios and Relics License. The Nashua Police Department conducted a background check on the petitioner in 2013 and, in doing so, learned of the 1998 conviction (why the City had not discovered the 1998 conviction previously, despite having conducted at least two prior background checks on the petitioner, was not explained in the record). Nashua Police determined that the 1998 conviction disqualified the petitioner from both the federal license for which he had applied and his state license to carry, and advised that the ATF deny petitioner his federal Curio and Relics license, and that his state license to carry be revoked. Petitioner appealed the revocation to the circuit court, and, following that court’s affirmance of the DOS' decision, he appealed to the Supreme Court court. On appeal, petitioner argued that the trial courts erred in: (1) upholding the revocation of his license to carry; (2) upholding the DOS’s decision to rescind the 2011 settlement; (3) failing to find that the City was bound by the 2011 settlement; (4) misinterpreting 18 U.S.C. sections 921(a)(20) et seq.; (5) disregarding the findings and conclusions of the FLRB’s decision restoring his right to possess firearms; and (6) failing to “give full faith and credit to the provisions of the public acts, records and judicial proceedings in Massachusetts.” The New Hampshire Supreme Court concluded that its interpretation of section 921(a) better fulfilled Congress’s purpose of “defer[ring] to a State’s dispensation relieving an offender from disabling effects of a conviction.” Here, Massachusetts acted clearly and directly to remove the restriction the petitioner’s 1998 conviction had placed upon his civil right to keep and bear arms. The Court held that Massachusetts restored the petitioner’s civil rights within the meaning of 921(a)(20). The Court reversed both trial courts’ decisions resting upon the contrary conclusion and remanded for further proceedings. View "DuPont v. Nashua Police Department" on Justia Law

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Plaintiff James Conrad appealed a Superior Court order granting the defendants’ motion for a directed verdict on grounds that they were entitled to sovereign, official, and qualified immunity. Plaintiff sued both defendants, New Hampshire Department of Safety (NHDS) and New Hampshire State Trooper Lieutenant Mark Myrdek, for false imprisonment, and against Myrdek for a violation of his civil rights pursuant to 42 U.S.C. 1983 (2012), seeking damages for events that occurred on November 28, 2007. Plaintiff alleged defendants falsely imprisoned him and violated his civil rights when defendants tried to calm plaintiff down after he made disparaging remarks about his wife (who was leaving him), tried to resign his position with the Department, and threatened to commit suicide. The defendants cross-appealed, raising evidentiary issues. Finding no reversible error, the New Hampshire Supreme Court affirmed the Superior Court's order. View "Conrad v. New Hampshire Department of Safety" on Justia Law

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Respondent, the City of Concord (City) appealed a superior court decision granting summary judgment in favor of petitioner Northern New England Telephone Operations, LLC d/b/a FairPoint Communications - NNE (FairPoint), in its equal protection challenge to the City’s taxation of FairPoint’s use and occupation of public property, and striking the tax levied against FairPoint. In order to provide telecommunications services throughout the City, FairPoint maintained poles, wires, cables, and other equipment within the City’s public rights-of-way. For the 2000 to 2010 tax years, the City imposed a real estate tax upon FairPoint for its use and occupation of this public property. Prior to 2010, the City did not impose a right-of-way tax upon Comcast, which used the City’s rights-of-way to provide cable services pursuant to a franchise agreement. The City began imposing the tax upon Comcast in 2010 in response to a ruling by the New Hampshire Board of Tax and Land Appeals (BTLA) that, notwithstanding the franchise agreement, Comcast was subject to the tax. Prior to 2008, the City did not impose the same tax upon Public Service of New Hampshire (PSNH) because it was unaware that PSNH had used and occupied the rights-of-way. Similarly, the City did not tax certain other users of its rights-of-way for their use and occupation of public property during the relevant tax years because it was not aware of their usage. FairPoint brought an action challenging, in relevant part, the constitutionality of the City’s right-of-way tax assessments against it for the 2000 through 2010 tax years. The parties filed cross-motions for summary judgment. In granting FairPoint’s motion, and denying the City’s motion, the trial court ruled, as an initial matter, that "intentionality" was not a required element of FairPoint’s equal protection claim. Upon review, the Supreme Court concluded that FairPoint’s equal protection claim was one of "selective enforcement," and not an equal protection challenge to the tax scheme itself. Thus, because the trial court applied an erroneous legal standard in ruling that the City selectively imposed the tax upon FairPoint, the Court vacated the trial court’s rulings and remanded for further proceedings. View "Northern New England Telephone Operations, LLC v. City of Concord" on Justia Law

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Respondent, the father of G.G., appealed a superior court order which, after de novo review, upheld a finding by the 10th Circuit Court – Portsmouth Family Division that the respondent had abused and neglected G.G. Respondent challenged the superior court’s denial of his request to cross-examine or subpoena G.G. after the court admitted her videotaped interview into evidence. The Supreme Court concluded that given the plain language of the pertinent statutes and the court’s inherent authority to control the proceedings before it, trial courts have the discretion in abuse and neglect proceedings to determine whether any witness, including the child, should be compelled to testify. The record was unclear as to whether the trial court adequately considered the competing interests of respondent and the child. The Supreme Court vacated the trial court's decision and remanded this case for further proceedings: "[w]hen the court is considering whether to compel G.G. to testify in this case, the court may wish to consider whether she testified at the respondent's criminal trial and, if so, whether her testimony in the criminal proceeding would suffice for the instant proceeding." View "In re G.G." on Justia Law

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The United States District Court for the District of New Hampshire certified a question to the New Hampshire Supreme Court: Whether RSA 507-B:2 and RSA 507-B:5 were constitutional under Part I, Article 14 of the New Hampshire Constitution, to the extent they prevented recovery for Plaintiff's claim for civil battery and damages against the Town of Sanbornton under a theory of respondeat superior. This case arose from a municipal police officer's use of a stun gun during a field sobriety test. Plaintiff Dennis Huckins alleged that the police officer, defendant Mark McSweeney, used his stun gun on him "multiple times." McSweeney claimed he used it only once when plaintiff began to run away before completing the field sobriety test. Plaintiff sued McSweeney and his employer, defendant Town of Sanbornton for damages, alleging, among other claims, a battery claim against McSweeney for his use of the stun gun and a claim that the Town was liable for battery under the doctrine of respondeat superior. The defendants sought summary judgment on both claims. The court denied McSweeney’s motion because the evidence, viewed in the light most favorable to plaintiff, did not establish that McSweeney fired only once, and because "[n]o reasonable police officer could have believed that the encounter . . . justified firing the [stun gun] a second time." Upon careful consideration of the facts of this case and the implicated statutes, the New Hampshire Court answered the certified question in the affirmative. View "Huckins v. McSweeney" on Justia Law