Litigation

 

Docket

Guare, et. al. v State of New Hampshire

Issue: Voting Rights

This suit challenges the New Hampshire law which would freeze out students and other mobile domiciliaries from federal and state elections.  The law would require those registering to vote to sign an affidavit agreeing that they are subject to the state’s residency laws—including laws mandating them to obtain a New Hampshire driver’s license and to register their vehicle in New Hampshire.  The registration form attempts to impose onerous and financially burdensome residency requirements as a condition for voting that conflict with the fact that one need only be “domiciled” in New Hampshire under current state law to vote.  The Plaintiffs’ Second Amended Petition is here.

On September 24, 2012, the Strafford County Superior Court preliminarily enjoined the usage of this affidavit language codified by statute, holding that this language “does not pass constitutional muster, and hinders educational efforts related to the election pertaining to qualifications for registering to vote.”  The Court added that the language advances a “confusing expression of the law to be considered by … those prospective voters in the position of the four student petitioners, that is, non-resident persons who otherwise qualify to vote and would not like to register and/or proceed to exercise their voting rights without feeling they are subjecting themselves … to residency law obligations.”  The Superior Court’s decision can be found here.

On March 14, 2014, the NHCLU filed a motion for summary judgment asking the Superior Court to issue a final, permanent declaratory judgment holding that this law is unconstitutional.  That motion can be found here.

Cooperating Attorneys: Alan J. Cronheim of Sisti Law Offices; William E. Christie and Benjamin Siracusa Hillman of Shaheen & Gordon, P.A.

Legal Documents:            Second Amended PetitionSuperior Court Decision; Motion for Summary Judgment

 

Brouillette v. State of New Hampshire

Issue: Access to Justice

Defendant Heidi Brouillette is an indigent defendant charged with several offenses.  Though she was initially provided a public defender, she chose to retain a private attorney for a substantially-reduced fee.  During the criminal proceedings, her private attorney informed the trial court that she was going to plead not guilty by reason of insanity given her mental health conditions.  Ms. Brouillette also filed a request that the State provide $2,000 in funds to secure an expert to conduct a psychological evaluation in support of her insanity defense.  The trial court denied Ms. Brouillette’s request without examining whether these funds were necessary for an adequate defense.  Instead, the trial court concluded that, because Ms. Brouillette is represented by a private attorney, her “ability to pay [for the expert] is presumed.”  The trial court further explained: “The defendant may proceed with current counsel at her expense or, if she continues to qualify for court appointed counsel, the Public Defender’s office will be reassigned and then it can determine whether services other than counsel are warranted.”

As explained in the NHCLU’s Amicus Brief before the New Hampshire Supreme Court, in refusing to provide a state-funded expert to Ms. Brouillette simply because she was represented by private counsel, the trial court effectively held that an indigent defendant’s due process constitutional right to an expert necessary for an adequate defense only applies when the defendant is appointed a state-funded attorney and therefore waives her Sixth Amendment right to retain willing private counsel.  As the NHCLU argues in its brief, our legal system’s commitment to fairness and equal justice requires that indigent individuals have a right to necessary experts regardless of whether they have a state-funded attorney, and it is fundamentally unfair to require indigent defendants—simply because they lack financial means—to choose between their due process right to receive these services and their Sixth Amendment right to choose their own lawyer.

Oral argument before the Supreme Court was held on March 5, 2014.

Legal Documents:            NHCLU Amicus Brief

 

In re M.B.

Issues: LGBT Rights

S.B. is a non-birth mother in New Hampshire whose female ex-partner, M.D., has kept her from seeing their eleven-year-old daughter, M.B.  M.D. is the biological mother of the child, and S.B. and M.D. raised M.B. together from her birth in 2002 until age six, and then co-parented her for over five years after they split up.  M.B. was conceived through donor insemination – a form of “assisted reproductive technology.”  At the time of M.B.’s birth, the couple could not marry in New Hampshire – which would have established S.B.’s legal parentage.  As a result, a guardianship was the only way to establish S.B.’s legal relationship with their daughter.  Earlier this year, M.D. terminated that guardianship in family court, cutting off contact between them, and began proceedings for her new husband to adopt M.B.

With representation by Gay & Lesbian Advocates & Defenders (“GLAD”), S.B. is doing everything she can legally to see her daughter again – including filing a petition to establish her parental rights under RSA 168-B:3 on the basis that S.B. has and continues to openly hold out M.B. as her child.  However, New Hampshire’s parentage statute, RSA 168-B:3, is not gender neutral on its face; instead, the statute applies only to a father who is seeking to establish parentage, not a mother.  Construing RSA 168-B:3 to apply only to fathers, and not to mothers, violates basic equal protection principles.  Such a construction treats a child of same-sex parents differently from a child of different-sex parents, and treats a mother who parents with another woman differently from a father.  Unfortunately, the family court dismissed S.B.’s parentage petition without providing for a hearing, and S.B. has appealed that decision to the New Hampshire Supreme Court.

The NHCLU is proud to have submitted, along with Lambda Legal and other organizations, an amicus brief to the Supreme Court in support of GLAD and S.B.’s appeal.  As explained in the brief, failing to protect the relationships between children who are conceived from assisted reproductive technology and their genetically-unrelated parents places the children at serious risk of emotional harm and financial insecurity.  The brief further addresses how the Court has multiple routes under New Hampshire law to protect children born through assisted reproductive technology by securing their legal relationships with both of the adults who brought them into the world and function as their parents, regardless of the marital status, gender, or sexual orientation of those adults.

Oral argument before the Supreme Court will be held on April 3, 2014.

 

Duncan, et. al. v. State of New Hampshire

Issues: Religion in Schools, Church and State

The Education Tax Credit Program allows businesses to reduce their tax liability by receiving an 85 percent tax credit in exchange for donations made to K-12 scholarship organizations, which will pay for tuition at religious and other private schools.  Since there is no state oversight of the schools receiving funds, religious schools will be able to use the donations for religious instruction, indoctrination and religiously-based discrimination.  The New Hampshire Constitution specifically provides that “no person shall ever be compelled to pay towards the support of the schools of any sect or denomination” and that “no money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination.”  The Complaint challenging the constitutionality of this Program can be found here.

On June 17, 2013, the Strafford County Superior Court held that this tuition tax-credit program violates the New Hampshire Constitution.  The Court explained: “New Hampshire students, and their parents, certainly have the right to choose a religious education.  However, the government is under no obligation to fund ‘religious’ education.  Indeed the government is expressly forbidden from doing so by the very language of the New Hampshire Constitution.”  The Superior Court’s decision can be found here.

The Superior Court’s decision has been appealed to the New Hampshire Supreme Court.  Our New Hampshire Supreme Court briefs can be found here and here.  Oral argument before the Supreme Court will be held on April 16, 2014.

In this case, the NHCLU is partnered with Americans United for Separation of Church and State and the ACLU.

Legal Documents:            School Funding Complaint; Superior Court Opinion; Opening Brief Before NH Supreme Court; Reply Brief Before NH Supreme Court

 

Doe v. State of New Hampshire

Issue: Criminal Justice

This case challenges the registration requirement for those sex offenders who completed their sentence before the registry went into effect.  In this case, the NHCLU has argued, among other things, that the law violates the Ex Post Facto Clause of the New Hampshire Constitution clause because it inflicts a punishment after the completion of the sentence.  Doe’s Petition for Declaratory Relief is here.

On June 13, 2013, the Superior Court granted the State’s motion for summary judgment, concluding that the registration requirement did not violate the Ex Post Facto Clause because it was more regulatory in purpose than punitive in purpose.

The NHCLU has appealed this decision to the New Hampshire Supreme Court.  Our briefs before the Supreme Court can be found here and here.  The parties are waiting for oral argument to be scheduled.

Cooperating Attorney: William Chapman of Orr and Reno

Legal Documents:            Doe Petition; NH Supreme Court Opening Brief; NH Supreme Court Reply Brief

 

State of New Hampshire v. Catherine Bailey, et. al.

Issue: First Amendment

The NHCLU defended several protestors charged with violations of a curfew ordinance and criminal trespass when they set up a twenty-four hour occupation of Veteran’s Park in Manchester.  The NHCLU filed a Motion to Dismiss the charges, arguing that the application of the curfew and trespass laws to the peaceful protest violated the Defendants’ rights to free speech, assembly and revolution under the New Hampshire Constitution.  After a full day hearing, the trial court denied the motion.

Those protesters who were convicted of criminal trespass appealed their case to a jury, which found them guilty.

Those protesters who were impacted by the trial court’s denial of the motion to dismiss the curfew-violation charge — a charge which does not involve a jail sentence — have appealed to the New Hampshire Supreme Court.  The NHCLU’s appellant brief before the Supreme Court can be found here.  Oral argument was held on March 5, 2014 and the parties are awaiting a decision.

Cooperating Attorney: Lawrence Vogelman of Nixon, Raiche, Vogelman, Barry & Slawsky

Legal Documents:            NHCLU Appellant Brief

 

David Montenegro v. New Hampshire Department of Motor Vehicles

Issue: First Amendment

David Montenegro is a New Hampshire motorist who applied for a vanity license plate reading COPSLIE.  His request was denied by the New Hampshire Department of Motor vehicles on the grounds that the phrase was offensive to good taste.  However, when later proposals such as GR8GOV were submitted, the DMV approved the vanity plate.  The Superior Court held that the DMV’s denial of Montenegro’s request did not violate his constitutional rights.  Montenegro appealed this decision to the New Hampshire Supreme Court.

In its amicus brief before the Supreme Court, the NHCLU argues that disapproval of COPSLIE and subsequent approval of GR8GOV was arbitrary and violated Montenegro’s First Amendment rights.  The NHCLU’s amicus brief can be found here.  The Supreme Court heard oral argument on November 7, 2013, and the parties are awaiting a decision.

Cooperating Attorneys: Anthony Galdieri and David Vicinanzo of Nixon Peabody LLP

Legal Documents:            NHCLU Amicus Brief

 

Recent Past Cases

City of Rochester Anti-Panhandling Ordinance

Issue: Economic Justice; First Amendment

On the evening of Tuesday, February 18, 2014, the Rochester City Council, by a vote of 9 to 0, repealed in its entirety an anti-panhandling ordinance it passed in July 2013 that violates the free speech rights of the poor and homeless.  This ordinance was intended to prevent so-called “aggressive” begging, but in fact it prohibited a large amount of peaceful speech. 

For example, the ordinance prevented poor people from doing such things as peacefully holding a sign asking for help (i) within 50 feet of any entrance or exit of any business or organization during its business hours, (ii) within 50 feet of an ATM or bank, (iii) in a bus shelter or at a bus stop, and (iv) in a median of any public road.  These prohibitions effectively banned peaceful panhandling on sidewalks and other public spaces in the entire downtown/business district area of Rochester.  In addition, the ordinance was limited to those transactions most likely to be initiated by the poor—i.e., solicitation for an “immediate” donation—while excluding other forms of solicitation.  Unfortunately, the City also selectively enforced the ordinance since its passage by targeting panhandlers, while allowing the Rochester Fire Department to solicit funds for charity in the downtown area in violation of the ordinance without any repercussions.

In December 2013, the NHCLU sent a letter to the City of Rochester stating its concerns about the constitutionality of the anti-panhandling ordinance.  As the NHCLU explained, if the ordinance was not repealed in full, the NHCLU would file a lawsuit and seek an immediate injunction against the ordinance.  

The NHCLU commends the City’s decision to fully repeal the anti-panhandling ordinance and its thoughtful consideration as to how the ordinance violated the free speech rights of New Hampshire’s poorest citizens.  The City’s repeal of the ordinance sends a powerful message to other cities and towns in New Hampshire that the NHCLU will aggressively protect the First Amendment rights of the economically disadvantaged in this state.

Documents: Demand Letter; Fosters Story On Repeal

Corro v. State of New Hampshire

Issue: Economic Justice

On March 4, 2014, a 22-year-old poor, single mother of two children was ordered to jail if she did not pay by the end of the day an outstanding $420 fine resulting from a violation-level conviction—a conviction, itself, which does not permit a jail sentence.  The Circuit Court did not conduct a hearing on the woman’s ability to pay the fine.  Because the woman couldn’t pay this fine, she was jailed that afternoon.  She didn’t have the means to pay the fine, in part, because her apartment was rendered uninhabitable by a fire in January 2014, and she had spent the last two months trying to rebuild her life after this disaster.  With one day in jail equating to each $50 of the remaining $420 fine, she was slated to be in jail for nine (9) days.

The next day—after the woman had spent one night in jail—the NHCLU filed with the Superior Court an emergency petition for a writ of habeas corpus seeking the woman’s immediate release.  As explained in the petition, “[t]he Circuit Court’s order is unconstitutional and must be immediately vacated because Defendant is financially unable to pay this $420 amount, as she is indigent and is therefore not wilfully failing to pay this fine.”  In an important victory, the Superior Court issued a decision immediately granting the NHCLU’s petition and ordering that the woman “be released on an immediate basis.”

Legal Documents: Emergency Writ of Habeas Corpus; Order of Release

State of New Hampshire v. Surprenant

Issue: Economic Justice

On Wednesday, February 19, 2014 at 11:00 am, the NHCLU received a call from the public defenders’ office informing us that a defendant was just ordered by the Circuit Court to be jailed if he did not pay $302 in fees by the close of business.  The defendant had no ability to pay this amount and was therefore at risk of going to jail within hours.  The Circuit Court’s order was unconstitutional.  The U.S. Supreme Court has made clear that the Equal Protection Clause of the U.S. Constitution prohibits jailing defendants who are unable to pay fines and fees assessed against them.  Jailing defendants in these circumstances discriminates against the poor.

In a written order issued later that afternoon, the Circuit Court modified its morning ruling, and now required the defendant to pay all the money in his personal possession ($90) and to pay the remaining $212 balance by 9:00 am on Friday, February 21.  In the order, the Circuit Court stated that, if the remaining $212 was not paid by that time “for any reason, he shall be, immediately, transported to the HCHOC [Hillsborough County House of Correction] to be held until the amount is paid in full.”

At 2:30 pm on Thursday, February 20, 2014, the NHCLU filed with the New Hampshire Supreme Court an emergency petition appealing the Circuit Court’s order.  The emergency petition can be found here.  At 4:30pm, the New Hampshire Supreme Court stayed in its entirety enforcement of the Circuit Court’s order.  The Supreme Court’s order can be found here.  This was a complete victory, as the defendant was no longer required to immediately pay the $212 or go to jail.  

Legal Documents: Supreme Court Emergency Petition; Supreme Court Order

Jonathan Doyle v. Commissioner of Department of Resources and Development

Issue: First Amendment

Jonathan Doyle is an amateur film maker who produced a small film about Big Foot on Mount Monadnock.  The film generated some publicity and Mr. Doyle decided to go back to the mountain to film a sequel.  A park ranger intercepted the filming and told him he would need to apply for a Special Use Permit because the filming was beyond the scope of routine recreational activity.  A Special Use Permit requires a waiting period of 30 days, costs $100, and requires the posting of a $2,000,000 insurance bond.  The NHCLU argued that this regulation was unconstitutional because it is too broad—it regulates small-time activity that has minimal impact on the mountain to the same extent that it regulates large-scale activity that can have a profound impact on the mountain.  The Superior Court denied the NHCLU’s Petition for a Declaratory Judgment.

The NHCLU appealed to the New Hampshire Supreme Court, and the NHCLU’s brief can be found here.  The Supreme Court reversed, holding that the regulation was not narrowly tailored to achieve the State’s interest in regulating competing uses of the park.  The NHCLU was awarded $46,000 in legal fees.  The Supreme Court’s decision can be found at 163 N.H. 215 (2012).

Cooperating Attorney: Jon Meyer of Backus, Meyer & Branch, LLP

Legal Documents:            Plaintiff Brief; Supreme Court Decision

William Thomas v. City of Franklin

Issue: Criminal Justice

This suit challenged the residency restrictions for sex offenders in the City of Franklin.  The Superior Court granted the petition, finding that the City violated the Equal Protection Clause of the New Hampshire Constitution because it burdened the fundamental right to use and enjoy property without demonstrating a sufficient reason for doing so.  The Superior Court decision can be found here.  The City of Franklin appealed to the New Hampshire Supreme Court.  The NHCLU’s appellee brief before the Supreme Court can be found here.  The City withdrew its appeal days before the scheduled hearing before the Supreme Court.

Cooperating Attorney: Richard Samdperil of Samdperil & Welch P.L.L.C.

Legal Documents:            Superior Court Decision; NHCLU Appellee Brief

Guglielmo v. Shaker Regional School District

Issue: Parental Rights

This suit challenged a rule that prohibits anyone with a felony record from volunteering in any capacity in the school.  The petitioner is a former convict, whose son faced serious medical challenges that required the constant presence of a nurse.  The petitioner sought to accompany his son to school when the nurse was unavailable.  The school refused.

The NHCLU argued that the rule was fundamentally unfair to a parent who posed no risk of harm to children. The NHCLU’s brief can be found here.  Unfortunately, the petitioner’s son died while this action was pending.

Legal Documents:            Memorandum in Support of Appeal

Sobol et. al. v. Commissioner of Department of Administrative Services, et. al.

Issue: Civil Liberties and Poverty

In May 2013, the NHCLU filed a lawsuit on behalf of the homeless population in Concord, New Hampshire. The lawsuit is in response to state officials’ recent efforts to clear homeless camps from public land, although the people in these camps have nowhere to go.  The NHCLU’s request for a preliminary injunction can be found here.

The NHCLU secured a victory on May 20, 2013 by obtaining a temporary injunction barring the state from enforcing RSA 236:58, which prohibits camping on certain public property.  The NHCLU asked the Court to turn the temporary injunction into a permanent injunction, which would prohibit the city from expelling its most at-risk individuals from public land.  The Court declined to issue a permanent injunction.

Legal Documents:            Request for Preliminary Injunction

Lucien Vincent v. Davina MacLean

Issue: Access to Justice

Lucien Vincent is an inmate in Concord Prison who filed a small claims action against Davina MacLean.  Mr. Vincent filed motions requesting transportation from prison to the court in order to appear for the small claims hearing and to present written evidence.  All requests were denied.  Mr. Vincent conducted his hearing over telephone and without any means of submitting written evidence.  The trial court ruled against him, citing that he had insufficient evidence.

Mr. Vincent appealed to the New Hampshire Supreme Court.  The question before the Court is whether the procedures used by the trial court—specifically the trial court’s refusal to transport Mr. Vincent to the proceeding—violate due process.  In its amicus brief, the NHCLU argues that Mr. Vincent’s due process rights were violated because inmates have a right to be physically present at a hearing when their absence would substantially impair their ability to introduce evidence and conduct an effective cross examination.  The NHCLU’s amicus brief can be found here.

In a decision issued on March 7, 2014, the Supreme Court concluded that the trial court did not violate Mr. Vincent’s due process rights.

Cooperating Attorney: Kelly E. Dowd of Bragdon, Dowd & Kossayda, P.C.

Legal Documents:            NHCLU Amicus Brief

 

 

 Edited on November 18, 2013