New Hampshire Supreme Court Addresses Expectation of Privacy For Common Areas


 

The January 2017 opinions from the New Hampshire Supreme Court include a case of first impression for the Court that addressed the expectation of privacy of common areas of residential apartment buildings. The matter of State of New Hampshire v. Robert Grimpson Smith, No. 2015-0636.

The pertinent facts relating to the expectation of privacy ruling  from the opinion are as followings:

On August 2, 2014, Officer Alden responded to a report that a woman, later identified as Kerry St. Lawrence, had collapsed on the lawn outside 14 Bank Street in Lebanon. When Alden arrived, he saw St. Lawrence sitting bent over on the lawn, approximately six feet from the entrance of the rooming house located at that address. Alden called out to
her, but she did not respond. When Alden put his hand on St. Lawrence’s
shoulder, she slowly lifted her head and looked at him groggily. After St.
Lawrence told him that she was having a medical issue, Alden called for the
Lebanon fire department.
Two EMTs arrived, as did another police officer, Sergeant Norris. The
EMTs assessed St. Lawrence and decided to take her to the hospital. At that
time, St. Lawrence began repeatedly yelling for the defendant. The defendant
did not respond. Norris asked St. Lawrence where the defendant was. She told
Norris that the defendant was in “our apartment” and gave Norris directions to
its location in the building. The door to the room St. Lawrence described
(room 1) was on the first floor, about ten feet from the rooming house’s main
door.
Both Alden and Norris were familiar with the house at 14 Bank Street,
having previously responded to various complaints at the location. They knew
14 Bank Street to be a rooming house, and testified that the front door was
usually wide open. Norris testified that he passes 14 Bank Street on a regular
basis because the road is heavily travelled and the police frequently patrol it.
Furthermore, he testified that in his eight years on the police force, he had
never seen the door closed. Alden described the house as having between eight
and ten rooms. Although these rooms were separately numbered and locked,
they shared a common hallway, kitchen, and bathroom.
Norris walked up to the rooming house to check on the defendant and
make sure that he was okay. Norris walked through the open front door of the
rooming house and saw the defendant lying unresponsive on the floor in
room 1, the door to which was also open. Norris called for the EMTs to come
inside.
Norris followed the EMTs into room 1. After the defendant regained
consciousness, he told the EMTs that he and St. Lawrence had used a quarter
gram of heroin. As the EMTs were treating the defendant, Norris observed a
syringe, a plastic spoon with cotton in the bowl, and a metal spoon. Based
upon his past experience, Norris recognized that these items could have been
used to prepare and inject heroin. While the defendant and St. Lawrence were
waiting to be taken to the hospital, Norris asked if they would consent to a
search of room 1. They declined to give consent.
Thereafter, the officers obtained a search warrant, pursuant to which they seized the plastic spoon with cotton, syringe, and metal spoon. The State later charged the defendant with one count of possession of heroin.

Defendant made a pretrial motion to suppress the evidence seized from the room as the fruits of an illegal search of the residence. Note, the Defendant moved to suppress the evidence under two theories relating to the State Constitution and the Federal Constitution.

The Court’s analysis under the State Constitution focused on the “expectation of privacy” of the common room at the Defendant’s residence. The expectation of privacy for common areas is a case of first impression for the Court and as it relied on secondary authority to make its determination. In examining how other courts have addressed this issue, the Court noted varying conclusions have been reached, which depended on the particular facts. In this case, the Court noted the living area in question was not self-contained, i.e. it had not separate bathrooms or kitchens, which at first blush argued in favor of finding an expectation of privacy. However, the Court further observed several other factors that argues against a finding for an expectation of privacy.

For example, the Court noted rooms of the building are individually numbered and locked, which is similar to an apartment building. Also, the front door of the building is customarily unlocked, and the common hallway is accessible by many people, including the landlord, eight to ten tenants and the guests and visitors of those tenants. Summarily, because of these factors the Court determined the Defendant did not have an expectation of privacy in the common area of the building.

The Court in Smith has essentially expanded the constitutional reach of the protections of expectation of privacy afforded by the State Constitution. However, the ruling in Smith is not a bright-line test and represents a totality of the circumstances test that will balance different factors to find whether an expectation of privacy exists in common areas. Criminal defense attorneys will surely cite this New Hampshire precedent to suppress future searches involving common areas, but practitioners will not be able to rely on Smith alone and will need to go outside primary authority to bolster their cases. On the other hand, the Court may find itself presented with more appeals regarding this issue and will likely accept them to bolster New Hampshire’s jurisprudence with regards this facet of expectation of privacy.

Adjudicating Limited Liability for Commercial Space in State Courts

An unforeseen circumstance of state commercial space limited liability laws at the time they were passed was the passage of the Commercial Space Launch Competitiveness Act and specifically the Act’s effect on jurisdiction for adjudicating legal actions arising out of commercial spaceflight activities. The Commercial Space Launch Competitiveness Act amends 51 U.S.C. § 50914 to 51 U.S.C. § 50914(g) as follows:

Federal jurisdiction.—Any claim by a third party or space flight participant for death, bodily injury, or property damage or loss resulting from an activity carried out under the license shall be the exclusive jurisdiction of the Federal courts.

As I have previously written in this blog and other publications, Congress’ grant of exclusive jurisdiction over the claims that arise out of commercial space flight activities effectively removes the jurisdiction of the state courts where the activities will be taking place and consigns them entirely within the authority of the federal district court and federal court of appeals for appellate review. As noted, the change in venue from the state courts to federal courts will remove the home court advantage for plaintiffs and level the playing field for defendant commercial space operators.

However, commercial space flights have yet to begin in earnest, which means no matters arising out of a commercial launch or reentry license have yet come to light. Thus, when a case is filed it will make the application of the limited liability laws a case of first impression. In other words, the scope of the limited liability laws, including their validity, will be tested during the first suit involving tort arising out of a commercial launch/reentry license. Consequently, 51 U.S.C. § 50914(g) requires this matter be adjudicated in a federal district court, which means it will be a federal court and not a state court that will test the validity of the limited liability laws.

This is problematic because the federal district court similar to a case heard via its diversity jurisdiction per 28 U.S. Code § 1332 will be required to apply state law. However, federal courts are reluctant to address matters of state law that have not already been adjudicated by a state supreme court. Federal courts can in some cases apply a mechanism known as certification to alleviate the responsibility of deciding questions of first impression in state law.

Certification allows a federal court in a diversity matter faced with a state law matter of first impression to transfer the question to the state court for the state supreme court to adjudicate. After the state supreme court has ruled, the federal court can then apply the state court ruling and to reach its decision in a case. However, certification is only recognized by a handful of states, none of which are those that have limited liability laws for commercial space activities. Therefore, unless the states that have limited liability statutes for commercial space activities also adopt the Uniform Certification of Questions of Law Act, the federal district courts in those states would have to decide the question of the scope and validity of the limited liability laws.  The dilemma is how can state courts weigh in on the scope and legality of limited liability laws without actually having a matter in tort arising out a commercial space launch or reentry license?  The answer may lie within a declaratory judgment.

A declaratory judgment is a judgment of a court, which simply declares the rights of the parties, or expresser, the opinion of the court on a question of law, without ordering anything to be done. In the case of the state limited liability laws for commercial space activities, a declaratory judgment would allow attorneys to seek the input of state courts on the applicability of those laws.  The nature of a declaratory judgment is such that no actual suit need be filed beforehand, which means a strict reading of 51 U.S.C. § 50914(g) suggests the federal court’s exclusive jurisdiction would not apply. In other words, because a declaratory judgment would not apply limited liability laws in an actual lawsuit, 51 U.S.C. § 50914(g) would not be triggered and the state courts would retain jurisdiction to adjudicate the legality and/or scope of state limited liability laws. In turn, when an actual case or controversy comes to light after the beginning of commercial spaceflight operations, the federal courts would have the judgment of state courts on the legality/scope of state limited liability laws to draw upon.

The time is ripe to file for declaratory relief and standing is not a concern. Any future space flight participant who has a deposit for a commercial spaceflight has standing to file for declaratory relief as does any of the commercial spaceflight providers. It would therefore behoove either of these parties to seek declaratory relief. Future spaceflight participants would benefit from declaratory relief to ensure they know their rights under the limited liability laws before commercial spaceflights begin and they subsequently commit themselves.

Conversely, commercial spaceflight providers would be wise to seek a declaratory judgment not only to ensure the limited liability laws will protect them, but also to cement the validity of those laws before they begin their respective operations, which would have the parallel effect of giving them firm legal footing when defending cases in federal court. For plaintiffs’ lawyers, the introduction of 51 U.S.C. § 50914(g) was surely an impediment to future adjudication of limited liability laws in relation to commercial spaceflight. However, plaintiffs’ lawyers can take the initiative by filing for declaratory relief in state courts and from the precedent created by the state courts formulate strategies to litigate future claims in federal court. The time for both sides to move is now before the federal courts’ exclusive jurisdiction takes hold and removes the matter entirely from the authority of the state courts.

The Exclusive Jurisdiction of the Federal Courts has Expanded.

On November 25, 2015, the President signed a bill into law amending commercial space activities under Title 51, Chapter 509, which deals with commercial space flight activities licensed by the Federal Aviation Administration (FAA). The bill signed by the President covers multiple aspects of commercial space flight, but one of the most interesting facets is Congress’ exercise of its Article III power over the lower federal courts, which it has used to extend the federal courts’ exclusive subject matter jurisdiction. Specifically, 51 USC § 50914(g) extends the exclusive jurisdiction of the federal courts as follows:

Federal jurisdiction.—Any claim by a third party or space flight participant for death, bodily injury, or property damage or loss resulting from an activity carried out under the license shall be the exclusive jurisdiction of the Federal courts.”.

It is significant for practitioners to be aware this amendment to the United States Code increases the federal court’s exclusive subject matter jurisdiction over copyright cases, admiralty cases, lawsuits involving the military, immigration laws, and bankruptcy proceedings to now include commercial space activities under Title 51, Chapter 509.

While New Hampshire does not have a state law regarding commercial space activities nor will it in the foreseeable future, the fact Congress exercised its Article III power is significant in of itself and will affect the viability of the commercial space industry and the manner in which the legal industry interacts with it.

I have written an article about the significance of the expansion of the federal courts’ subject matter jurisdiction.  You can find the article here.

To Remove or Not to Remove: Considerations for Removing Actions to Federal Court

Note: An abridged version of this article appeared in the July New Hampshire Bar News.

Removal of state actions to federal district court provides practitioners with a valuable tool for actions filed in state court that involve a question under federal subject matter jurisdiction. Defendants in particular may find that removing a case with a federal questions from state court, which also has state law questions, may provide a more favorable venue for their defense, including the application of the Federal Rules of Civil Procedure and Evidence, electronic filing and a broader population to form a jury pool.

Practitioners representing defendants may be quick to file for removal to federal district court once they see the plaintiff’s state law matter contains a federal question. Yet, the presence of state law claims in addition to a federal question should give practitioners pause and take into consideration whether they should file for removal because the supplemental jurisdiction that the federal district court exercises over the state claims is dependent on whether the federal question remains germane. This consideration is relevant to the intended strategy of the defendant to fully adjudicate the matter through trial in the federal district court or remove to federal district court solely to file a motion to dismiss under Rule 12(b)(6).

When a defendant removes a matter that has state law questions and motions the court for dismissal under Rule 12(b)(6), the court will first look to the federal question when it makes its decision. If the court dismisses the federal question, it will no longer be able to exercise supplementary jurisdiction over the plaintiff’s state law claims. See Camelio v. American Federation, 137 F.3d 666, 672 (1st Cir. 1998). In that instance, the court would be required to remand the plaintiff’s state law claims back to the superior court for further adjudication. See Camelio 137 F.3d at 673.

Once the remaining state claims are remanded to state court, the defendant will be obliged to either file an Answer to the plaintiff’s state law claims or a Motion to Dismiss presumably within thirty days of remand from the federal district court. See Rule 9(b). The end result is that the practitioner’s decision to remove the matter to federal district court only to make a dispositive motion results in the federal claim being removed and requires an additional motion to dismiss filed in superior court to dispose of the state law claims, which incurs additional time and expense to the defendant.

Practitioners facing a scenario where state law claims supplement a federal claim should consider whether removal is beneficial or necessary before filing with the federal district court or whether the matter should remain with the superior court . Among the factors to consider are whether the federal question is exclusive to the subject matter of the federal district court or whether the superior court has concurrent jurisdiction over the claim; whether there is a tactical advantage to remove to federal district court; and/or whether the defendant intends to fully adjudicate the matter before the federal district court or file a dispositive motion.

In accord with these factors, practitioners should consider the application of the Rules of Professional Conduct when deciding to remove such a matter to federal district court. For example, communication to the client under Rule 1.4(a)(3) and Rule 1.4(b) might be implicated. Communicating to the client the rationale for removal to federal district court for a dispositive motion and the possibility of duplicative filing upon remand of the state law claims would be implicit to make the client aware that the tactic might involve added time and expense. Depending on the scope of representation in the fee agreement, the client may wish not to pursue removal if there is no tactical benefit and a dismissal of the federal claim results in a duplicative filing in superior court upon remand of the state claims.

Practitioners should consider their professional duty to act with reasonable diligence and promptness in representing the client under Rule 1.3 when considering removal. When faced with the issue of supplemental state law claims, the practitioner should resolve whether removal to federal district court and filing a dispositive motion is reasonably diligent in adjudicating the defendant’s matter or whether diligence requires that the practitioner allow the superior court to exercise it concurrent jurisdiction over the federal claim and its subject matter jurisdiction over the state claims when considering a dispositive motion.

Removal to federal district court is a beneficial tool for practitioners to employ when faced with federal questions in superior court. However, even though practitioners have the option to use removal should not eclipse the reasoning of whether using removal would be advantageous. Practitioners should accordingly analyze whether it is to the defendant’s advantage to remove the matter to federal court and if suitable discuss the issue with their clients.

 

Thoughts on the Fee Agreement

The most basic yet essential part of representation is the fee agreement where the lawyer outlines the scope of the representation of the client. At its essence, the fee agreement is a contract and as such governed by the laws off contract as it relates to the professional obligations of an attorney to the client. Yet, given the importance of the fee agreement in the scheme of representing the client, attorneys often relegate this most important document to boilerplate language with one-size fits all language. As attorneys we often tell our clients to read what they’re signing, but in the case of the fee agreement are we really reading and understanding what we are asking our clients to sign?

My clients are attorneys, and when I enter into an agreement to research and write a motion or appellate brief, I am specific as to the scope of the representation so that they understand exactly what I will and won’t do. However, when I do represent a non-attorney client it is often in a limited fashion. It is at this point when dealing with a non-attorney that I sit down and carefully craft a fee agreement that is unique to the individual. When crafting a fee agreement such as this I ask myself several questions:

  • What is the client’s expectations in this representation, and does he/she understand the limits to the representation?
  • What are my limits to the representation? Does he/she understand what I am willing and not willing to do?
  • Does the client understand the terms of compensation for my services and what their obligations are?
  • Have I addressed the terms of the representation in clear, concise language so that there is no ambiguity about the terms of the agreement?
  • In the case of the particular client, are there personality traits that I need to take into consideration that could affect the representation, and have I addressed them in the agreement?

While the practice of law is demanding and time precious, it behooves us to take a hard look at the fee agreement we are asking a client to sign and analyze whether it will fit a specific situation or whether it needs to be adjusted to meet the particular demands that a client may present. Most attorneys would never advise a client to use boilerplate agreements to enter into real property transactions given the unique nature it possesses. Given that each client is a unique person and presents a unique representation, is it not our responsibility to ask ourselves whether the agreement we are asking that client to sign is not only a fit for that client’s particular needs, but also whether that agreement is a fit the type of representation we are willing to provide?

The answer to that question is the difference between a smooth representation where the client’s expectations are met or a difficult representation where both the client and attorney have a bad experience.

Scrutinizing New Hampshire’s Exception to Res Judicata

Res judicata is a powerful tool for defendants in New Hampshire to defeat repetitive lawsuits brought by plaintiffs. Therefore, it is used to great effect as an affirmative defense in a motion to dismiss. New Hampshire case law recognizes that res judicata applies when three elements are met: ” (1) the parties must be the same or in privity with one another; (2) the same cause of action must be before the court in both instances; and (3) a final judgment on the merits must have been rendered in the first action.” Kalil v. Town of Dummer Zoning Bd. of Adjustment, 159 N.H. 725, 730. (N.H. 2010). Res judicata is difficult to overcome, but a nuance in New Hampshire case law recognizes an exception to its preclusive effect, but the Court’s current view of the second element of res judicata and the present view of res judicata in general may have invalidated that exception.

The New Hampshire Supreme Court observed in Laconia National Bank v. Lavallee, 96 N.H. 353 (N.H. 1950), that in certain circumstances an issue in the present litigation is not precluded by res judicata if it is a different cause of action and it was not at issue and litigated in the prior action, or a matter in issue, and merely used as evidence, or a matter in evidence, in the prior trial. In other words, under Laconia, if the issue in the present litigation was used only as a matter in evidence in the prior litigation and it is not the same cause of action, then it will not be precluded by res judicata.

Laconia at first blush looks to offer plaintiffs an escape from the jaws of res judicata, but its utility is clouded because “cause of action” as defined and applied by the Court in Laconia is different from “cause of action” defined by current New Hampshire jurisprudence. Under the writ system formerly employed by the New Hampshire courts, “cause of action” as enunciated under Laconia recognized the law/equity distinction and had a very narrow meaning such that the theory in the second case would not be barred by res judicata if the theory pled in the second suit was unavailable to the plaintiff under the writ used in the first suit thereby by not allowing the plaintiff an opportunity to litigate it there.

The Court’s decision in Eastern Marine Const. Corp. v. First Southern Leasing, Ltd., 129 N.H. 270 (N.H. 1987) revisited the definition of “cause of action” to reflect the modern view that does not recognize the law/equity distinction that epitomized the narrow interpretation . Eastern Marine applies the present trend of “cause of action” that collectively refers to all theories on which relief could be claimed on the basis of the factual transaction in question regardless of whether they are in law or equity. In other words, Eastern Marine dissolved the law/equity distinction so that a plaintiff can bring any and all claims that exist in both law and equity under a given set of facts. This definition of “cause of action” invalidates the exception to res judicata in Laconia because a plaintiff now has few if any excuses for not pleading all theories in a case with the same set of facts.

The Court last used Laconia in a published opinion inLineham v. Southern New England Production Credit Ass’n, 122 N.H. 179 (N.H. 1982) where the Court found the exception to res judicata applied. Notably, the Court has not taken up Laconia since Lineham in a published opinion, which means the Court has not addressed whether Laconia remains germane in the post-Eastern Marine environment. Nevertheless, the Court recently addressed the application of Laconia in a slip opinion in the matter of Michael S. Kurland v. Town of Brookline & a., Case No. 2013-0448 (2014). The plaintiff in Kurland attempted to use the exception in Laconia to escape the preclusive effect of res judicata that dismissed his action at law against the Town of Brookline. The Court remarked that the exception in Laconia did not apply because the plaintiff’s case arose out of the same set of operative facts, but equally important departed from Lineham and observed that the distinction between matters in issue and matters in evidence as applied in Laconia arise only in the context of collateral estoppel. Thus, the Court now interprets Laconia in the context of the modern view of “cause of action” articulated in Eastern Marine and equates res judicata as used in Laconia to mean collateral estoppel, which implies that the exception to res judicata in Laconia is now invalid. As a result, the next time the Court deals with Laconia in a published opinion it could overturn or at the very least refine its meaning. Whether the Court will wait for another case to come before it or produce an opinion sua sponte to address Laconia remains to be seen.

What does this mean for plaintiffs seeking to pull their case from the jaws of res judicata? The primary implication is that Laconia can no longer be relied upon to defeat the affirmative defense of res judicata, and practitioners should advise clients accordingly that res judicata may bar their complaint.  Nonetheless, Laconia may continue to be useful for plaintiffs to defeat the defense of collateral estoppel, but its continued validity as legal precedent is uncertain. What is certain is that res judicata will continue to be an effective arrow in a defendant’s quiver no matter what the Court ultimately decides to do with Laconia.