Rideout, et al. v. State of New Hampshire
Issue: First Amendment; Voting Rights
On October 31, 2014, the ACLU-NH filed a federal lawsuit on behalf of three New Hampshire voters—including one member of the New Hampshire House of Representatives—challenging RSA 659:35(I) on the grounds that it violates the right to free speech under the First Amendment. This law, which became effective on September 1, 2014, bans a person from displaying a photograph of a marked ballot reflecting “how he or she has voted,” including on the Internet through social media platforms like Twitter, Facebook, and Instagram. Now, willfully engaging in this form of political speech is a violation-level offense punishable by a fine of up to $1,000. The law contains no exceptions.
RSA 659:35(I) violates the First Amendment by banning pure political speech on matters of public concern beyond the polling place (including in one’s home) that is not remotely related to the State’s purported interest in enacting the law—namely, addressing vote-buying and voter coercion. Political speech is essential to a functioning democracy. The First Amendment does not allow the State to, as it is doing here, broadly ban innocent political speech with the hope that such a sweeping ban will address underlying criminal conduct.
On November 12, 2014, the Plaintiffs filed a motion for a preliminary injunction asking the Court to prevent enforcement of the law while this lawsuit is pending.
Cooperating Attorney: William E. Christie of Shaheen & Gordon, P.A.
Pendleton v. City of Nashua, et al.
Issue: First Amendment; Economic Justice
We represent a 24-year-old man who is homeless and spent 33 days in jail simply for walking in a park. In May 2014, Jeff Pendleton was hauled off to jail for walking along a public foot path in the park adjacent to the Nashua public library.
Jeff was arrested for criminal trespass in violation of a verbal “no trespass” order he received a month earlier. This order banned him from the library and the adjacent park, including its walkways, green space, and benches. His bail was $100 but he did not have the money so he had to spend the next 33 days in jail. After his release, the ACLU-NH secured the dismissal of the criminal charge.
Parks are protected places under the First Amendment. They are places for the public—the poor and affluent alike—to congregate and enjoy. Jeff had every right to be in the walkway in that park. Moreover, the verbal “no trespass” order violated his due process rights because it denied him the opportunity to challenge the order. The ACLU-NH has sought civil relief for these constitutional violations.
Cooperating Attorney: Lawrence Vogelman of Nixon, Vogelman, Barry, Slawsky & Simoneau, P.A.
Pendleton v. Town of Hudson, et al.
Issue: First Amendment; Economic Justice
On August 20, 2014, the ACLU-NH filed a lawsuit in federal court in Concord against the Town of Hudson on behalf of Jeffery Pendleton, a homeless man who resides in the Nashua/Hudson area. The lawsuit seeks to end Hudson’s unconstitutional practice of detaining, harassing, threatening, dispersing, and citing panhandlers in violation of the First, Fourth, and Fourteenth Amendments to the United States Constitution. Mr. Pendleton and other panhandlers have a constitutional right to peacefully panhandle in public places without fear of arrest, prosecution, retaliation, and interference by the police.
This lawsuit follows the receipt of documents from the Town of Hudson pursuant to ACLU-NH Right-to-Know records requests. What these documents uncovered was disturbing. From March 2011 to March 2014, at least 12 Hudson police officers in at least 18 separate incidents (13 of which took place from September 2013 onward) instructed panhandlers that panhandling was illegal or that a permit was required to panhandle. These panhandlers were then told to be “on their way,” and at least two panhandlers – including Mr. Pendleton – were cited and directed to go to court. However, there is no state or town law that makes panhandling in public places illegal or requires a permit for this form of expressive activity. Hudson’s practices are also targeted at the poor and homeless, like Mr. Pendleton. For example, while the Hudson police department has cited Mr. Pendleton for engaging in peaceful solicitation, the police department has decided to allow the Hudson fire department to engage in the same form of solicitation for charity in public places without any repercussions.
On August 27, 2014, the Court issued an agreed-upon injunction banning Hudson’s anti-panhandling practices while the case is being litigated.
Cooperating Attorney: Christopher Cole of Sheehan Phinney Bass + Green PA
Libertarian Party of New Hampshire v. State of New Hampshire
Issue: Voting Rights; Ballot Access; First Amendment
On July 22, 2014, the ACLU-NH filed a lawsuit on behalf of the Libertarian Party challenging HB1542. HB1542 is a new state law passed in 2014 that imposes onerous restrictions on third parties by compressing the time period for third parties to collect the number of signatures necessary to get on the ballot. This law limits voter choice and stacks the deck against candidates who—like roughly 40% of Granite Staters—don’t belong to a major party. HB1542 is wrong and unconstitutional.
HB1542 addresses the ability of a third party to gain access to the ballot as a recognized political party. Gaining access to the ballot as a recognized party has real advantages, including the ability to run a slate of candidates and engage in pre-election organizing. HB1542 states that, when a third party seeks to gain access to the ballot before an election by collecting certified signatures, those signatures “shall be signed and dated in the year of the election.” In short, HB1542 prohibits third parties from collecting signatures before January 1 of the election year, and they will now only have 7 months to collect the necessary number of signatures (from January 1 to early August). This compressed time frame will make the task of obtaining ballot access far more difficult—if not impossible—for third parties.
On September 22, 2014, the State filed a motion to dismiss the Libertarian Party’s lawsuit. On October 23, 2014, the Libertarian Party filed its objection to the State’s motion to dismiss. On December 30, 2014, the State’s motion to dismiss was denied.
Cooperating Attorneys: William E. Christie and Courtney Michalec Hart of Shaheen & Gordon, P.A.
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 ACLU-NH 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.
On July 24, 2014, the Strafford County Superior Court issued an order striking down this law as unconstitutional. In its decision, the court correctly called the added language “a confusing and unreasonable description of the law” that imposed a chilling effect on the right to vote of those domiciled here.
Cooperating Attorneys: Alan J. Cronheim of Sisti Law Offices; William E. Christie and Benjamin Siracusa Hillman of Shaheen & Gordon, P.A.
Kearns v. Town of Littleton, et al.
Issue: First Amendment
In January 2014, Richard P. Kearns—a 72-year-old National Guard veteran with no criminal history—was cited for harassment and disorderly conduct by a Littleton police officer after allegedly calling a parking enforcement officer an expletive while he was in a public space. Mr. Kearns has long been active in politics and holds strong opinions about how to maintain a vibrant downtown, which includes, among other things, encouraging business by providing free downtown parking. Mr. Kearns’ alleged speech directed at the parking enforcement officer was expressing these views peacefully.
Mr. Kearns’ arrest and prosecution violates his clearly-established constitutional rights. The law is clear that swearing (cursing or using profanity) in public or to enforcement officers is protected speech under the First Amendment. Therefore, disorderly conduct and harassment citations and arrests for profanity (usually termed “obscenity” in the citations) are unconstitutional. Countless courts have repeatedly held for the last two decades that police cannot arrest people for either using profanity in public or directing it at enforcement officers or civilians.
The rationale for these decisions is straightforward. As the U.S. Supreme Court has held, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.” Houston v. Hill, 482 U.S. 451, 462-63 (1987). Thus, criticism of enforcement officers, profane or otherwise, is not (and cannot under the First Amendment to the Constitution be) a crime.
On June 11, 2014, the ACLU-NH wrote to the Littleton Police Department demanding that all charges be dismissed. Our letter is here. In response to the ACLU-NH’s letter, the State dismissed all charges on June 16, 2014—one day before the scheduled trial. Mr. Kearns, with the NHCLU’s assistance, has sought civil damages for this violation of his First Amendment rights.
Cooperating Attorney: Leonard D. Harden of Harden Law Offices (for criminal case)
Legal Documents: NHCLU Demand Letter
Farrelly v. City of Concord, et al.
Issue: First Amendment
On December 12, 2014, the ACLU-NH filed an amicus brief before the New Hampshire Supreme Court in the case Farrelly v. City of Concord, et. al. In this case, the plaintiff has asserted intentional tort claims against the City of Concord after Concord police officers arrested and prosecuted him pursuant to a statute, RSA 644:4, I(f), that had been struck down by the New Hampshire Supreme Court four years earlier in State v. Pierce, 152 N.H. 790 (2005) as violating the free speech protections of Part I, Article 22 of the New Hampshire Constitution. The lower court held that the City was entitled to official immunity against the plaintiff’s intentional tort claims because the police officers were unaware that the statute was unconstitutional at the time of the arrest despite being provided this information by their employer.
This case raises an important question as to whether, for a police officer and his employer to obtain official immunity for intentional torts, the officer in question must have acted under a “reasonable belief” that his conduct is authorized by law as required under Part I, Article 14 of the New Hampshire Constitution. Under this “reasonable belief” standard, (i) the officer must have subjectively believed that his conduct was unlawful, and (ii) that belief must be objectively reasonable when measured against that of a reasonably well-trained officer. The lower court examined the former and not the latter and, therefore, we argue that its decision did not comply with Article 14 of the New Hampshire Constitution.
As we argue in the brief, the policy considerations of the lower court’s decision to not apply an objectively reasonable standard are significant. Indeed, the lower court’s ruling, if affirmed, would considerably restrict—if not outright eliminate—the ability of plaintiffs to seek redress for intentional torts in state courts against police officers and municipalities, including intentional torts arising out of clear violations of rights protected under the federal and state constitutions. Under the lower court’s ruling, a municipality can obtain immunity for an intentional tort simply if the officer in question subjectively believed in the lawfulness of his or her actions, including relying on a statute that clearly has been held unconstitutional but has not been formally repealed. Such a rule would immunize, based solely on the officer’s subjective beliefs, even objectively improper conduct that no reasonably well-trained officer would ever think is appropriate. An objective standard, on the other hand, recognizes the axiomatic principle that it has always been the province of the courts, not law enforcement, to determine the reasonableness of an officer’s conduct in ascertaining whether immunity principles apply to violations of fundamental rights.
Cooperating Attorney: Lawrence Vogelman of Nixon, Vogelman, Barry, Slawsky & Simoneau, P.A.
Legal Documents: ACLU-NH Amicus Brief
City of Keene v. James Cleaveland, et al.
Issue: First Amendment
On July 28, 2014, the New Hampshire Civil Liberties Union filed an amicus brief before the New Hampshire Supreme Court in the case City of Keene v. James Cleaveland, et al. In this case, the City of Keene has brought civil claims against individuals who are engaging Keene parking enforcement officials in a non-threatening manner. The City is also seeking an injunction prohibiting these individuals’ speech that is grossly overbroad and would suppress the ability of these individuals to engage parking enforcement officials peacefully. As we explain in the brief, this speech is constitutionally protected, and the trial court correctly dismissed the City’s claims.
Cooperating Attorney: Anthony Galdieri of Nixon Peabody LLP
Legal Documents: ACLU-NH Amicus Brief
Doe v. State of New Hampshire
Issue: Criminal Justice Reform
This case challenges the registration requirement for those sex offenders who completed their sentence before the registry went into effect. In this case, the ACLU-NH 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. Oral argument before the Supreme Court was held on May 8, 2014 and we are awaiting a decision.
Cooperating Attorney: William Chapman of Orr and Reno
Recent Past Cases
State of New Hampshire v. Soto, et al.
Issue: Criminal Justice Reform
On May 12, 2014, the NHCLU filed a “friend-of-the court” brief on behalf of itself, six other organizations, and four professors at the University of New Hampshire School of Law asking the New Hampshire Supreme Court to end this state’s cruel and unusual practice of sentencing juveniles to life in prison without the possibility of parole (“JLWOP”).
In the U.S. each year, children as young as 13 are sentenced to spend the rest of their lives in prison without any opportunity for release. To date, approximately 2,570 children have been sentenced to JLWOP in the U.S. Despite the global consensus that children cannot be held to the same standards of responsibility as adults and recognition that children are entitled to special protection and treatment, the U.S. continues to allow children to be treated and punished as adults. The U.S. is the only country in the world that engages in this inhumane practice. Unfortunately, this practice exists in New Hampshire, and there are currently four New Hampshire defendants who have received JLWOP sentences for crimes they committed when they were children.
In 2012, the U.S. Supreme Court in Miller v. Alabama, 567 U.S. __, 132 S. Ct. 2455 (2012), struck down state regimes (like the one in N.H.) that mandates a JLWOP sentence for children convicted of first-degree murder, concluding that this practice violates the Eighth Amendment’s prohibition against “cruel and unusual punishment.” However, the U.S. Supreme Court in Miller stopped short of categorically finding all JLWOP sentences unconstitutional.
In our amicus brief, we argue two points. First, we contend that the Miller decision applies retroactively to the four New Hampshire children who were sentenced to JLWOP prior to the issuance of the Miller decision. Second, we argue that, as a categorical matter, JLWOP sentences violate Part I, Article 33 of the New Hampshire Constitution, which bans “cruel or unusual punishments.”
On August 29, 2014, the New Hampshire Supreme Court held that the Miller decision applies retroactively.
David Montenegro v. New Hampshire Department of Motor Vehicles
Issue: First Amendment
This case began in May of 2010 when the petitioner applied for a vanity car license plate reading “COPSLIE.” Several DMV employees, applying the DMV regulation prohibiting vanity license plates “which a reasonable person would find offensive to good taste,” rejected the application on the grounds that they believed the text was “insulting.” When this decision was appealed to the DMV director, the director concluded that “a reasonable person would find COPSLIE offensive to good taste.” The petitioner then requested the license plate “GR8GOVT,” which the DMV approved. The petitioner then brought suit in Superior Court, arguing that the DMV regulation used to reject the “COPSLIE” license plate violated his free speech rights guaranteed under both Part I, Article 22 of the New Hampshire Constitution and the First Amendment to the U.S. Constitution. The Superior Court held that the DMV’s denial of the petitioner’s request did not violate his free speech rights. The petitioner appealed this decision to the New Hampshire Supreme Court.
In its amicus brief before the New Hampshire Supreme Court, the NHCLU argued that disapproval of “COPSLIE” and subsequent approval of “GR8GOVT” was arbitrary and violated the petitioner’s free speech rights. The NHCLU’s amicus brief can be found here. The Supreme Court heard oral argument on November 7, 2013.
In a victory for free speech rights in New Hampshire, the Supreme Court held on May 7, 2014 that the DMV regulation prohibiting vanity car license plates “which a reasonable person would find offensive to good taste” violated Part I, Article 22 of the New Hampshire Constitution. Adopting the arguments in the NHCLU’s amicus brief, the Court concluded that the regulation was unconstitutionally vague because it is “so loosely constrained” that it “authorizes or even encourages arbitrary and discriminatory enforcement.” The Court’s decision can be found here. A more comprehensive NHCLU post on the Court’s decision can be found here.
Cooperating Attorneys: Anthony Galdieri and David Vicinanzo of Nixon Peabody LLP
Brouillette v. State of New Hampshire
Issue: Criminal Justice Reform; 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.
In an important victory for access to justice, the New Hampshire Supreme Court held on July 11, 2014 that RSA 604:A-6, which addresses the representation of indigent defendants in criminal cases, “cannot be read as prohibiting a court from authorizing necessary services to indigent criminal defendants who are self-represented, or who have pro bono, reduced fee, or retained counsel.” This decision affirms our legal system’s commitment to fairness and equal justice by ensuring that indigent individuals have a right to necessary experts regardless of whether they have a state-funded attorney. Moreover, this important decision interpreting RSA 604:A-6 recognizes that 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.
In re Guardianship of Madelyn B.
Issues: LGBT Rights
In an important win for LGBT families, the New Hampshire Supreme Court ruled on July 2, 2014 that Susan B. is a legal parent to the daughter she brought into the world with her now ex-partner, Melissa D. Citing the premise that “children do best when both parents have a stable and meaningful involvement in their lives,” the Court provided twelve-year-old Madelyn B. with the opportunity to be reunited with a parent she’s known her whole life but hasn’t seen in over one year. The Court’s decision can be found here.
Susan B. was represented by Gay & Lesbian Advocates & Defenders (“GLAD”) in the case. The NHCLU is proud to have submitted, along with Lambda Legal and other organizations, an amicus brief to the New Hampshire Supreme Court in support of Susan B.’s appeal.
Susan B. is a non-birth mother whose female ex-partner, Melissa D., has kept her from seeing their twelve-year-old daughter, Madelyn B. Melissa D. is the biological mother of the child, and Susan B. and Melissa D. raised Madelyn B. together from her birth in 2002 until age six, and then co-parented her for over five years after they split up. Melissa B. was conceived through donor insemination – a form of “assisted reproductive technology.” At the time of Melissa B.’s birth, the couple could not marry in New Hampshire – which would have established Susan B.’s legal parentage. As a result, a guardianship arrangement was the only way to establish Susan B.’s legal relationship with their daughter. Earlier in 2013, Melissa D. terminated that guardianship arrangement in family court, cutting off contact between them, and began proceedings for her new husband to adopt Madelyn B.
Susan B. has done everything she legally can to see her daughter again – including filing a petition to establish her parental rights under RSA 168-B:3 on the basis that Susan B. has and continues to openly hold out Madelyn 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, 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.
In reversing the family court, the New Hampshire Supreme Court agreed that RSA 168-B:3 should be interpreted in a gender neutral fashion. In so holding, the Court recognized a critical fact: Madelyn B. has two parents, regardless of what their gender, sexual orientation, or marital status is.
As explained in our amicus 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 addressed how the Court had 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.
Legal Documents: Supreme Court Decision
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.
Vaughan v. State of New Hampshire
Issue: Economic Justice; Criminal Justice Reform
On July 14, 2014, the NHCLU secured the release of an indigent man named Richard Vaughan.
Mr. Vaughn was jailed on Tuesday, July 8, 2014 in Littleton Circuit Court for failing to pay a $895 fine — a fine he simply had no ability to pay because he is poor. Under the Circuit Court’s order, he was scheduled to be jailed one day for each $50 of the fine, meaning that he would be jailed for 18 days (until July 26). When he was jailed, he was not represented by counsel.
As explained in the NHCLU’s Petition for Writ of Habeas Corpus, Mr. Vaughan, who is not on government assistance, has no money and is simply struggling to get by. He has been out of work since May and has been looking for work ever since. He has worked his whole life, is a hard worker, and has made substantial progress in his job search (including securing an interview the day before he was jailed). As we argued, this progress would only be impeded by compelling him to spend over two weeks in jail. Moreover, jailing him would waste county resources, as Mr. Vaughan is clearly not a threat to society.
On July 14, 2014, the Grafton County Superior Court released Mr. Vaughan for the reasons stated in the Petition.
Corro v. State of New Hampshire
Issue: Economic Justice; Criminal Justice Reform
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.”
State of New Hampshire v. Surprenant
Issue: Economic Justice; Criminal Justice Reform
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.
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. On August 28, 2014, the New Hampshire Supreme Court declined to reach the merits of the case and held that the plaintiffs did not have standing to bring suit. On September 8, 2014, the plaintiffs submitted a motion for rehearing or reconsideration, which was later denied.
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; NH Supreme Court Decision; Motion for Rehearing or Reconsideration
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.
In a decision issued on August 8, 2014, the Supreme Court concluded that the criminal trespass convictions did not violate the First Amendment.
Cooperating Attorney: Lawrence Vogelman of Nixon, Raiche, Vogelman, Barry & Slawsky
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
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.
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: Economic Justice
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.