The NH Constitution versus Immigration Federal Law: A case study in Woodstock, NH

            As some of you may remember, a border patrol checkpoint in Woodstock, NH resulted in multiple drug arrests of various individuals with small amounts of marijuana. Some of the Defendants challenged these arrests on constitutional law grounds. In a lengthy order, Judge Thomas Rappa of the New Hampshire Circuit Court has politely, but strongly reaffirmed, that where New Hampshire provides greater protections then do federal procedures, the New Hampshire procedures must be adhered to in any search and if they are not, there will be consequences to the prosecution.

            At issue were a series of arrests at a motor vehicle border patrol stop in the Town of Woodstock on Route 93 in August of 2017. United States Customs and Border Patrol agents were working the checkpoint with assistance from local police departments. For several years, the Border Patrol has set up a motor vehicle stop approximately 90 miles from the Canadian border in the Town of Woodstock on Route 93. The primary goal, per border patrol, was to identify immigration violators as part of the federal government’s focus on immigration crackdowns. This time around, in August of 2017, the stop included drug sniffing dogs. If a dog alerted on a vehicle, that vehicle was pulled aside and the local police officers from Woodstock of New Hampshire precincts would conduct a search of the vehicle. Ostensibly, the border patrol had the dogs present to stop drug smuggling. However, the dogs would alert on vehicles with any drugs, including those vehicles with nominal amounts of marijuana for personal use only. In those nominal cases, border patrol had no interest in prosecuting the defendants. However as indicated, assisting border patrol were members of the local police department. While the border patrol was not interested in vehicles containing small amount of drugs, the local authorities were interested and arrested several individuals during the course of the stops.  It was this group of individuals that challenged the arrests claiming that the searches were unconstitutional under New Hampshire law. New Hampshire’s protections under the law for these individuals are greater than those provided under federal law when it comes to searches involving drug sniffing dogs.

            The defendants moved to suppress the evidence of drugs found as a result of these stops. The state argued that since the stops themselves and searches were permissible under federal law and were conducted by federal actors, the local authorities could use the information provided by the federal agents and make the arrests. The defense argued where the prosecutions were in state court the greater protection provided by the law of New Hampshire with regard to searches applied. Since the searches conducted by the federal actors did not comply with state requirements, and because the prosecutions were in NH state court, the court ordered the suppression of all evidence secured as a result of those searches. Ultimately, Judge Rappa found the searches violated New Hampshire constitutional law. It is not clear at this point whether the state will appeal Judge Rappa’s decision.

            This is a situation where New Hampshire’s constitutional rules apply, and the greater constitutional protections afforded by our state were applied. While the immigration issue is a very separate matter, this order demonstrated that if the State wishes to get involved in these stops, they must still follow the rules of the state they are in.

            This unique situation is one of many playing out around the country, as we look at various way to change and apply our immigration and constitutional law. At Parnell, Michels & McKay, we are always looking at developments in the law. If you are concerned about how the law affects you, contact us today.

CIVIC DUTY: TESTIFYING IN FRONT OF THE NEW HAMPSHIRE STATE CONGRESS

                Recently, there has been a significant debate in the New Hampshire house legislature about a rather mundane bill to most people. For the past year or so, Attorney Rory Parnell has attended multiple hearings and spoken to many legislators in New Hampshire in support of a direct deposit bill in workers’ compensation cases.

                The bill itself is very straight forward. If an injured employee is out for six weeks or more, the employee can elect to receive their indemnity benefits (a weekly wage check) via direct deposit. The current rule allows for insurers to mail the wage checks each week the worker is out due to a work injury. Unfortunately, mail is unreliable due to issues with mail carriers, holidays, and delays by the workers’ compensation insurer delaying payments. For those that are reliant on the check each week to pay bills, even a day or two delay can cause havoc on their finances. Now, with the bill set to be signed into law by Governor Sununu, such delays should be a thing of the past.

                While this is an important victory for workers’ compensation claimants, it took many meetings and hours of work by many New Hampshire attorneys and their clients to get this passed. When the original bill was proposed, Marissa Chase, the legislative lobbyist for the New Hampshire Association for Justice (NHAJ) put in countless hours to lobby senators and house members alike in support of this bill. This bill will save insurers time and money, and provide the reliability our injured clients need during the stressful time they are unable to work.

                However, there are many hearings, meetings and committee meetings for such bills. It is important for the legislature to know that the work they are doing will help their constituents. And, while we met resistance from the insurance lobbyists, ultimately through testimony and hard work the bill was able to be passed by the House and Senate.

                This civic duty of engagement is something many more people should think about exercising. The State of New Hampshire publishes pending bills, and invites the public to speak in support of or against such proposals. However, many people are either unaware, or unable to attend such meetings or hearings, as it is often inconvenient and difficult to attend. Attorney Parnell and the rest of NHAJ are proud of all the work the plaintiff’s attorneys and their clients put in to getting this bill passed.

                At Parnell, Michels & McKay, we try to stay involved in both our community, and the formation of the laws that regulate us when we can get an opportunity to do so. If you are interested in the ways our firm can help you when you face problems under the law, or with a particular pending bill, contact us and find out how we can help you.

MEDICAL PAYMENTS COVERAGE UNDER THE TRAVCO CASE

                For those of us that handle injury cases, the TRAVCO decision was a long time coming. Basically, New Hampshire has a no fault coverage on any automobile insurance policy issued in the state. This no fault coverage is called “Medical Payments” coverage, and is regulated by RSA 264:16. As Plaintiff’s attorneys, we long took the position that using the medical payments coverage to pay the health insurance lien was not a “double recovery” within the statute and should be allowed. Insurers refused to honor this, and steadfastly refused to pay any health insurance lien. The Medical Payment Statute forbid a person from recovering from both health insurance and auto insurance for a medical bill related to the accident. However, if the person injured pursue a third party claim against the person that hit them, then that can trigger a “subrogation” right (i.e. a right of reimbursement) by the health insurer for proceeds from the third party injury case.  Thus, the argument that there is no double recovery, and that medical payment coverage can be used to pay a health insurer’s lien if any medical payment benefits remained.

                The TRAVCO case found that in such situations, the Plaintiff has not had a “double recovery” and mandated that the auto insurer pay off the health insurance lien up to the applicable medical payments limits. This is important, as in the past, this was not being allowed by insurers. Now, the New Hampshire Supreme Court has ruled the Plaintiffs were correct, and finally the statute can be used to help protect those it was intended to protect when first drafted.

                A special thanks to the New Hampshire Association for Justice (an organization Parnell, Michels & McKay has been a proud member of for many years) for their tireless work in helping get the New Hampshire Supreme Court to find in the Plaintiff’s favor.

                If you find yourself injured due to no fault of your own, please contact us and let us put this new law to work on your behalf.