2004 Spring, 21. The Civil Bureau: Soup to Nuts.

AuthorBy Attorneys Ann F. Larney, Anne Edwards, Wynn E. Arnold, Nancy J. Smith, Michael K. Brown, and Orville B. Fitch, II

New Hampshire Bar Journal

2004.

2004 Spring, 21.

The Civil Bureau: Soup to Nuts

New Hampshire Bar Journal Spring 2004, Volume 45, Number 1 The Civil Bureau: Soup to Nuts By Attorneys Ann F. Larney, Anne Edwards, Wynn E. Arnold, Nancy J. Smith, Michael K. Brown, and Orville B. Fitch, II

INTRODUCTION

The Civil Law Bureau ("Civil") acts as legal counsel for 114 executive branch agencies, boards, commissions and councils. There are 38 state agencies, many of which have multiple divisions with varied duties and functions. In addition to the state agencies, Civil also provides legal advice and representation to 53 licensing/regulatory boards and 23 councils/commissions. There are 13 attorneys, several of whom are part time, 2 paralegals and four secretaries. Each attorney is assigned to assist a variety of the client agencies. Although there are no real "specialists," some of the attorneys represent agencies that produce more litigation and others have clients that require more intense legal advice and assistance. For example, the Department of Administrative Services and the boards, commissions and councils require more legal advice and assistance, while the Departments of Resources and Economic Development (DRED), Safety and Corrections generate a significant amount of the bureau's litigation.

In 1999 Civil formed a sub-unit within the bureau known affectionately as FLU (Federal Litigation Unit). The purpose of FLU is to handle the increased number of federal cases efficiently. The unit is staffed by an Associate Attorney General, who manages the unit, three (3) attorneys, a secretary and a paralegal. Although the FLU attorneys are primarily litigators, they also have client agencies they advise and represent. Like any law office, Civil handles trial and appellate court litigation for all its clients, provides legal advice and interpretation through formal written opinions, informal memos and on the telephone - frequently on a daily basis. Unlike any law office, however, Civil has no control over the amount of the work that comes through the door (EN1).

Over the last two years, Civil defended 450 new lawsuits that were filed in state and federal courts. This is in addition to working on hundreds of other litigation matters still active from prior years. During the same time period, forty cases were settled (EN2) and 390 cases were resolved judicially.

With the 1985 case of Tilton v. Dougherty, which limited the State's ability to utilize the defense of sovereign/official immunity, and the increased litigation under 42 USC 1983, which allows individuals to sue state actors in their individual capacity in federal court, the Civil Bureau has become a litigation unit rather than the legal advisor it had been in prior years. Approximately 50% of attorney time is now devoted to trial court litigation. Another 15% is appellate litigation. Civil filed a total of 63 appellate briefs in the last two years. 47 briefs were in defense of state action and five were state's civil appeals to the New Hampshire Supreme Court. Eleven briefs were filed in the First Circuit Court of Appeals.

Providing legal advice to state agencies, boards and commissions remains an important function of Civil. An average of 200 - 300 agency advice files are opened per year. Each file represents an important legal issue posed by the client that requires significant legal research and analysis by the assigned attorney. In addition, attorneys consult with their clients informally, sometimes on a daily basis, through telephone contact or e-mail. All the executive branch agencies submit their contracts and leases to their assigned attorney for review prior to submission to Governor and Council to ensure legal sufficiency. Over the last two-year period Civil reviewed and approved close to 4000 contracts and leases - close to one thousand more than during the prior two-year period.

Civil is a dynamic and challenging place to work with new and interesting legal issues presented daily. One day an attorney may be in federal court arguing a First Amendment case, the next day in the office researching a separation of powers question or preparing a response to a petition for writ of habeas corpus filed by an inmate. The sections below describe some of the daily challenges and issues presented to Civil.

I. REPRESENTATION OF PROFESSIONAL LICENSING BOARDS AND OTHER ADJUDICATIVE AGENCIES By Wynn E. Arnold, Senior Assistant Attorney General

The Civil Bureau represents licensing boards and other executive branch agencies whose statutory duties include adjudicative, prosecutorial and investigative functions. This commingling of functions is among the many unique challenges in agency representation that distinguish Civil from other bureaus of the attorney general's office and from private law firms. Many of these agencies, including nearly all of the professional licensing boards and commissions, have no in-house legal staff and are headed by volunteer or part-time commissioners and board members, few of whom are attorneys. Some, such as the auctioneer's board, have virtually no staff and sparse resources to hire outside consultants or investigators to assist with disciplinary proceedings, which, over the past few years have tended to become more complex and rife with aggressive advocacy. Civil Bureau attorneys advise and support many of these agencies on how to effectively and lawfully perform their statutory duties within their resource limitations.

Some of the perhaps lesser known issues in representation of adjudicative agencies include:

In conclusion, more Civil Bureau time and effort is spent representing licensing boards and other quasi-judicial agencies than most people realize. The evolving panoply of challenges not typical of years past precurses more rapid changes in the next few years.

II. CIVIL RIGHTS LEGISLATION AND ENFORCEMENT By Ann Fitzpatrick Larney, Associate Attorney General

In 1999 a group of attorneys ("civil rights group") from several bureaus within the office began to look into whether New Hampshire had sufficient and effective laws to protect citizens against incidents of hate motivated violence. The impetus for this project came from reports by the Human Rights Commission that they were inundated with a steady stream of calls alleging discrimination and hate motivated violence from around the state. The Human Rights Commission, because of its limited jurisdiction (EN7), could not address a large percentage of these calls.

The "civil rights group" began the project by reviewing and analyzing New Hampshire laws, both civil and criminal, that addressed hate motivated violence. The group also reviewed laws in other jurisdictions and talked with law enforcement, advocacy and religious groups. The conclusion, not surprisingly, was that New Hampshire is not immune from acts from violence motivated by hatred or animosity towards certain personal characteristics of the victim. Although anecdotal, the Human Rights Commission and others were able to create a list of incidents based upon newspaper articles and reports from both private citizens and law enforcement agencies indicating that bias motivated acts of violence and damage to property were occurring with disturbing regulatory in New Hampshire.

The ultimate decision of the "civil rights group" was to propose a civil statute that provided for civil remedies to address hate motivated violence. The proposed statute was a logical extension of the Human Rights Commission law and the existing criminal statutes that seek to address discrimination and illegal acts motivated by bias or hatred. The goal was to have an additional tool for law enforcement to combat and deter civil rights violations.

Proposed RSA Chapter 354-B declared that all New Hampshire citizens have a right to engage in lawful activities without being threatened or subjected to violence, trespass or damage to property motivated by race, color, religion, national origin, ancestry, sexual orientation, gender or disability. The proposed act authorized the Attorney General to file a civil lawsuit in Superior Court to enjoin bias motivated conduct and to seek other appropriate civil remedies and penalties, including fines up to $5,000 for each violation. There were bipartisan sponsors for the bill, and it passed the Senate by a 23 to 2 vote. The bill came out of the House Judiciary Committee with unanimous support and was passed by the House on the consent calendar. New Hampshire Civil Right's Act (RSA 354-B) became effective on January 1, 2000.

Prior to the effective date of the statute, the Office of the Attorney General provided statewide training on the new law for law enforcement and members of the Attorney General's Office who volunteered to be part of an office wide group of attorneys, secretaries and paralegals who would handle civil rights cases on a rotating basis. Since January 2000, the Office has received 32 reports alleging conduct in violation of RSA 354-B. The large majority of these cases were reported to the Office by law enforcement from all parts of the state. Victims reported only a few incidents. Twelve complaints alleged threats, intimidation, name-calling, assaults and/or property damage motivated by race. Nine were motivated by sexual orientation; four, religion; and one, disability. Two complaints involved incidents that took place prior to the effective date of the statute. Eleven complaints are...

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