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.

Probate Law in NH - An Overview

This article discusses the basics of Probate procedure in New Hampshire . We will try to provide a broad overview of the process of probating an estate. You also can get a good overview of the process from the court’s perspective  by going to the court’s website, www.courts.state.nh.us/probate. You will find a lot of “how to” materials including checklists, forms and a handbook on administering estates.  In fact, the court’s online information may be all one needs for handling small and uncomplicated estates. However, as stated in the handbook, the information available “is not a substitute for legal advice”. Accordingly, should you find yourself in the position as the executor or administer of even a small uncomplicated estate, you should give serious consideration to meeting with a lawyer to review the various issues and your options. A simple session or two can help you avoid making potentially serious mistakes. Conveniently, all probate matters are now part of the e-filing system, which is designed to make filing with the Court easier.

 At the heart of probate administrative procedure is the concept of “fiduciary duty”. It is the standard by which the executor/administrator’s performance judged. In fact you will often see administrators/executors referred to as fiduciaries. A fiduciary duty is the highest standard of care imposed at law. A fiduciary is required to be extremely loyal to the estate and may not put their personal interests before their duty to the estate. Any deviation may result in the executor/administrator being personally responsible for any loss sustained by the estate. This is why a corporate surety fiduciary bond is most often required as part of the process of getting things started. A fiduciary bond protects the estate should there be any deviation from the fiduciary standard. The standard applies to all actions taken to administer the estate by the executor/administrator who must ensure that the estate is managed and distributed in accordance with law. While an attorney is not required to probate an estate, involving a lawyer minimizes the likelihood of inadvertent deviation from the fiduciary standard.

The process of probating an estate is simple and complicated at the same time. It is simple in the sense that the personnel at the Probate court have done an excellent job in providing materials and instructions on the court’s website. It is complicated because to probate an estate one has to know, understand and be able to apply the law in preparing forms. For example, what happens when a surviving child is not mentioned in a will? Can he/she inherit anyway? What about a surviving spouse that is not mentioned? Or an unmarried life partner? The administrator/executor must be able to answer questions such as these to fill out one of the forms required to open an estate and in doing so is required to meet the fiduciary standard. Having a lawyer involved makes the process of accurately completing the forms much easier

All assets need to be identified and an inventory be provided to the Probate Court within a specific time frame of getting the Certificate of Appointment. In preparing this inventory for the court, one has to distinguish between probate assets and non-probate assets. This is often not as simple as one might think. For example, depending on the deed, a home may be a probate asset or a non-probate asset. Depending on the beneficiary, a life insurance policy may be a probate on non-probate asset. Bank accounts and retirement plans also may or may not be probate assets. Even the family cars may or may not be includable as probate assets.  Again, having the assistance of an attorney during this phase can make the process easier and much less stressful.

What else happens during the process of probating an estate is dependent on a number of different things.  If there are no other outstanding issues, a Waiver of Administration may be appropriate as soon as six months after the Certificate of Appointment is issued. If 12 months have passed after the Certificate of Appointment was issued, an executor/administrator’s accounting will need to be submitted. There may be other rules that need to be followed in other scenarios that have not been discussed in this note. All and all the process can be quite overwhelming, particularly given the fiduciary obligation discussed in an earlier column. Using a law office to assist in the process will relieve that pressure. At Parnell, Michels and McKay we have many years of experience in handling probate matters and will knowingly, intelligently and with empathy guide you through the process. Contact us if you need assistance. 

Guardianship of Minor and the Opioid Crisis

            The Opioid Crisis has gripped our nation for several years. However, news agencies and governmental bodies have only begun taking steps in recent years to help stem the tide. This past summer, New Hampshire made waves for becoming the first state in the country to provide grandparents preferential treatment to obtain a guardianship over their minor grandchildren when the parents suffer from substance abuse. The law came into effect on January 1, 2018.

The framework for Guardianship Law in New Hampshire can be found in RSA 463. New Hampshire Law provides for two forms guardianships: Person or Estate. Guardianship of another’s person means the Guardian is responsible for decisions ensuring the safety and well-being of the child as aligned in accordance the child’s best interest. Guardianship of another’s estate means the Guardian is responsible for ensuring the safekeeping and maintenance of the child’s property and finances. These forms of guardianships apply to adults as well.

Guardianships of any variety for any class could be quite difficult to secure when contested. In the fact for minors, in most circumstances, the Court still applies a “clear and convincing” evidentiary standard in order for the Court to find that a guardianship over the person of a minor is necessary. See RSA 463:8, III(b). Clear and convincing is considered the “medium” evidentiary standard. A Petitioner under this standard would be required to prove that it is substantially more likely than not that a guardianship will be in the child’s best interest. Therefore, it was once the case that unless parents willingly entered into a guardianship, guardianships over the person of a minor were not easily attained against the wishes of the parent, no matter the scenario.

However, a new section of RSA 463:8, III(b) reads as follows: “If guardianship is sought by the minor’s grandparent as the result of the parent’s substance abuse or dependence, the burden of proof shall be on the petitioner to establish by a preponderance of the evidence that a guardianship of the person is in the best interests of the minor.” This change in the law significant lowers the standard for grandparents seeking to deliver their grandchild from dangerous environments where the parents decision-making capacity is extraordinarily flawed. The “preponderance of the evidence” is the least rigorous evidentiary standard, if put into a percentage, the standard would mean that more than 50% of the evidence points to a particular conclusion. This is the same standard used in any civil trial.

While there are two sides to every story, the chances of abuse on a law like this are minimal. The parties are still required to appear in front of judges to determine whether a guardianship is put in place. Further, the law restricts the use of the lessened evidentiary standard to an intimate family member that likely has particular knowledge about raising the child and/or a special relationship with that child already. Further, the law maintains the extra evidentiary level of protection in other guardianship cases. It is unfortunate that a law like this needs to exist in the practical reality we now live in, but with laws like this the State of New Hampshire is trying to take steps on a pressing issue while insuring the family unit remains together as best as possible in trying times.    

Understandably, guardianships can be an extremely emotional time for any potential Petitioner. While petitions are now filed online through the Court’s E-Filing system, it is worthwhile to contact an attorney before filing to ensure you receive the best legal and practical advice. The attorneys at Parnell, Michels & McKay are well-able to provide such a two-pronged advice to guide you through trying times. As guardianships meet at the intersection of Probate and Family law, if you are interested in learning more about guardianships or have other questions in the areas of Family or Probate law, please contact us to learn more.  

2018 Third Annual Pro Bono Hockey Game a Success

                Sunday January 14^th was the third annual Pro Bono Hockey game between Team Justice and Team Liberty. The game was played at St. Anselm College in Goffstown, NH, which provided a great venue for the event. I was a close battle all game long. Ultimately, Team Liberty prevailed in a 6-5 overtime thriller. They were led by captain Hon. Paul Lawrence, and goalie Joe DiBrigida from Sheehan Phinney. Judge Lawrence netted a goal and two assists to pace Team Liberty, and Neil Nicholson and Justin Veiga also factored in significantly on the game. Team Justice was led by Matthew Burrows who finished with three goals to lead Team Justice. The game was a tremendous success with positive feedback from all participants and our sponsors.

                                                   

                The game saw over $4,000 in funds raised for pro bono, and a big thanks goes out to all the players and fans who attended the game. Big thanks goes out to the sponsors: Upton Hatfield, McCandless and Nicholson, Connelly Reporting, Gallagher Callahan and Gartrell and of course, Parnell, Michels & McKay. Divine Millimet and Orr and Reno were also banner sponsors of this wonderful event.

                We at Parnell, Michels and McKay are proud supporters of the New Hampshire Pro Bono Referral Program, and of helping our community and those in need. We look forward to continuing to sponsor such a great event well into the future. 

SHOULD YOUR CORPORATION BE A BENEFIT CORPORATION (AND WHAT IS A BENEFIT CORPORATION)?

I am sure many of us have heard the reports in print and online media that Millennials are becoming the largest consumer group and that they often choose to spend their money at companies which practice good corporate citizenship.  This includes supporting corporations which put their money where their mouth is by donating services, products or a percent of their profits to underserved communities or other charitable causes.  Think about the company that donates shoes to the underprivileged or a family in a third world country if you buy a pair of shoes from them.  Or, the company that donates a percentage of their profits to a particular charity.  How are these companies set up in their state of incorporation?

Thirty-three states, at last count, have statutes that apply to these so-called, benefit corporations.  New Hampshire has a benefit corporation statute at NH RSA 293-C which took effect on January 1, 2015.  Directors of a benefit corporation are permitted, and may be required, to consider the social benefits of their decisions in addition to profit motives.  Some statutes have been criticized as being too vague and not giving enough guidance to the directors.  New Hampshire requires the corporation to have a material positive effect on society or the environment.  The NH law defines a specific public benefit to include providing low-income or underserved individuals or communities with beneficial products or services; protecting the environment; improving healthcare; or, promoting the arts and sciences.  The statute also has certain reporting requirements which must be met.

The allowance of benefit corporations in New Hampshire is an attractive development for community and environmentally minded business owners.  It enables them to practice their social values without sacrificing the ability to make a profit.  But it is advisable to contact an attorney to set up the corporation and provide advice on the operation of the business.

If you would like to start a benefit corporation or would like to convert your current corporation to a benefit corporation, please contact an attorney in our office.  We offer advice to all types of corporations, limited liability companies and other business entities designed to achieve each client’s goals and needs.