2006-315, STEVEN J. SNELLING v. CITY OF CLAREMONT

The defendants, the City of Claremont (City) and its city

Slawsky on the brief and orally), for the defendants. Nixon, Raiche, Vogelman, Barry & Slawsky, P.A., of Manchester (David P.

the brief and orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Backus, Meyer, Solomon & Branch, LLP, of Manchester (Jon Meyer on

editorial errors in order that corrections may be made before the opinion goes No. 2006-315 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Sullivan Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as article.

p. 2 TIF committee, and one concerned the plaintiff’s comments in the newspaper concerned the plaintiff’s testimony before the zoning board, one related to the termination letter, Porter cited seven reasons for the termination: two

for future lost wages and benefits. The Trial Court (

termination. The plaintiff was terminated in September 2000. In the plaintiff’s

Amendment claim is barred by the recent United States Supreme Court On appeal, the defendants contend that: (1) the plaintiff’s First

the tax system’s inequities and his role, or proposed role, in those changes. motion for judgment notwithstanding the verdict. These appeals followed. defendants’ motions for remittitur and a new trial, as well as the plaintiff’s

$3,780 in punitive damages. The jury awarded nothing on the plaintiff’s claim and emotional distress, $151,200 in enhanced compensatory damages, and research, Yazinski informed Porter that there was no impediment to the and awarded him $151,000 in past wages and benefits, $50,000 for mental be terminated. After reviewing Porter’s memorandum and conducting his own the First Amendment. Following a trial, the jury found in favor of the plaintiff Porter for a memorandum outlining why Porter believed the plaintiff ought to under 42 U.S.C. § 1983 alleging that his termination violated his rights under termination against the City. The plaintiff also brought a claim against Porter In September 2003, the plaintiff filed this action alleging wrongful

referenced as commenting on some of the efforts that had been made to correct illegal, advantage of the City’s tax abatement system. Finally, the plaintiff was

Yazinski to discuss whether the plaintiff should be terminated. Yazinski asked Shortly after publication of this article, Porter met with city solicitor Jack

position of his department. Claremont Zoning Board of Adjustment hearing in opposition to the official employment, the plaintiff testified on behalf of a social acquaintance at a indicated that certain members of the city council were taking unfair, but not system was unfair, or otherwise flawed. Additionally, in the article the plaintiff “adding his voice” to those of others who had been claiming that the City’s tax published on August 27, 2000. In the article, the plaintiff is credited with interviews with the reporter and an article incorporating those interviews was Claremont Eagle Times newspaper. The plaintiff participated in a series of In August 2000, the plaintiff was contacted by a reporter from the

from the TIF Committee. Additionally, during the early months of his the City’s tax increment district. In July 2000, the plaintiff abruptly resigned other things, preparing a report to submit to the State regarding the finances of the Tax Increment Finance (TIF) Committee, which was responsible for, among Soon after being hired as the city assessor, the plaintiff began to serve on p. 3 3

provides through its employees. interest as an employer in promoting the efficiency of the public services it

activity in question was protected. questions of law subject to de novo review. Id. character that the principles of the First Amendment protect and, therefore, are determinations depend upon whether the employee’s statements are of a referred to as the Pickering balancing test. Pierluisi, p. 3 339 F.3d at 51. These at 568. This evaluation of the employee’s rights and the employer’s interests is

demonstrate that his interest in the speech outweighs the state’s countervailing Id.; Connick v. Myers, 461 U.S. 1 p. 3 38, 147 (1983). The plaintiff then must purpose, the plaintiff must speak as a citizen on a matter of public concern.

250 F. p. 3 3d 188, 194 (3d Cir. 2001). First, the plaintiff must establish that the Perez v. Pierluisi, 339 F.3d 43, 51 (1st Cir. 2003); Baldassare v. State of N.J., in the First Amendment must be evaluated under a three-step process. Guilloty A public employee’s retaliation claim for engaging in activity protected by

confine our analysis to the Federal Constitution. claim involves only the First Amendment to the United States Constitution, we Porter is entitled to qualified immunity. We note that because the plaintiff’s contend that even if Garcetti and Pickering do not bar the plaintiff’s case, tainted the jury’s decision on this issue. We address each argument in turn. does not bar the plaintiff’s case, Pickering does. Finally, the defendants his future wages and benefits, arguing that the defendants’ closing argument circumstances presented.” Second, the defendants contend that if Garcetti trial court’s denial of his motion for judgment notwithstanding the verdict on Claremont in this case that plaintiff has no First Amendment claim under the agreement with the argument made repeatedly by Mr. Porter and the City of Garcetti bars the plaintiff’s action because there the Court “expressed its we address them together. The defendants first argue that the recent decision Because the first three issues raised by the defendants are intertwined,

municipal liability cap in RSA 507-B: p. 4 4 (1997). The plaintiff cross-appeals the (7) the superior court erred in refusing to remit the verdict based upon the Constitution; (6) the plaintiff did not prove his wrongful termination claim; and instructions to the jury relating to Part I, Article 8 of the New Hampshire evidentiary rulings prior to and during trial; (5) the superior court erred in its Porter is entitled to qualified immunity; (4) the superior court erred in various v. Board of Education, p. 3 391 U.S. 563 (1968), weighs against the plaintiff; (3) Amendment claim is not barred by Garcetti, the balancing test from Pickering decision in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006); (2) if the First 4

for First Amendment purposes.”

to the case at hand.

conducting the task is within the scope of the employee’s professional duties because they were made in the course of his official duties. written job description is neither necessary nor sufficient to demonstrate that protection for his comments in the memorandum and before the trial court actually is expected to perform, “the listing of a given task in an employee’s formal job descriptions often bear little resemblance to the duties an employee “[t]he proper inquiry is a practical one.” Id. Because, according to the Court, creating excessively broad job descriptions. Id. Instead, the Court stated that Court rejected the suggestion that employers can restrict employees’ rights by duties in cases where there is room for serious debate.” Id. However, the articulate a comprehensive framework for defining the scope of an employee’s pursuant to his employment duties, the Court noted that it had no occasion “to Because the parties in Garcetti did not dispute that Ceballos was acting

the Court determined that Ceballos was not entitled to First Amendment employee in his or her professional capacity.” Id. In light of this conclusion, “[e]mployers have heightened interests in controlling speech made by an outlining this conclusion. communications from employer discipline.” Id. at 1960. This is so because pending criminal case, and submitted a memorandum to his superiors First Amendment purposes, and the Constitution does not insulate their information in an affidavit submitted with a search warrant application in a pursuant to their official duties, the employees are not speaking as citizens for The Supreme Court held “that when public employees make statements concern. In subjected to a series of retaliatory employment actions.” Id. challenge. Id. Ceballos claimed that “in the aftermath of these events he was repeated his conclusion regarding the affidavit, but the court rejected the hearing before the trial court challenging the propriety of the warrant, Ceballos his supervisors determined that the prosecution should proceed. Id. During a reached the same decision, absent the protected conduct. to discuss Ceballos’ memorandum. Id. at 1956. Despite Ceballos’ conclusion,

Office, Richard Ceballos, believed that a deputy sheriff had misrepresented

Garcetti, an attorney in a Los Angeles County District Attorney’s

whether the speech at issue was delivered by a citizen on a matter of public The Garcetti decision focused upon the first factor in the above analysis –

F.3d at 195. at 51. These final two steps present issues for the fact finder. Baldassare, 250

public employer can rebut the claim by demonstrating that it would have Healthy City Board of Ed. v. Doyle, p. 4 429 U.S. 274, 287 (1977). Finally, the was a substantial or motivating factor in the alleged retaliatory action. Id.; Mt. The second step requires the plaintiff to show that the protected activity was his employment as the city assessor. Under 5

p. 5 required to communicate with the public about local tax issues. While we are

pursuant to his official duties. does nothing to demonstrate whether the plaintiff’s comments were made party’s motivations for speaking with that employee. Therefore, this argument

to his official duties because the reason for his being interviewed for the article

that he was the City’s highest tax official and that as part of his duties he was Next, the defendants argue that the plaintiff’s job description establishes

public employee’s official job duties that are the relevant factor, not a third

therefore, properly before us. Additionally, the plaintiff contends that if the As noted, the defendants first contend that the plaintiff spoke pursuant

plaintiff’s official duties, is properly before us. See Sup. Ct. R. 16(3)(b). applicability of Garcetti. Thus, Garcetti, and the accompanying analysis of the Pickering predate or postdate our announcement of the rule. issue requires an analysis of the subsidiary question regarding the as the term has been defined in review and as to all events, regardless of whether such events Garcetti. Accordingly, a ruling on the Pickering must be given full retroactive effect in all cases still open on direct, we must determine whether the plaintiff was speaking as a citizen, court erred in its analysis and application of Pickering. In order to address The defendants’ notice of appeal raises the issue of whether the trial

neither raised in the notice of appeal nor added by later motion, and is not, official duties. The plaintiff counters that the issue of his official duties was activity; and (3) the plaintiff testified that he spoke to the reporter as part of his position as city assessor; (2) his job description encompassed this type of the article indicated that the reason for the plaintiff’s involvement was his contend that the plaintiff was acting pursuant to his official duties because: (1) therefore, his comments were not insulated from discipline. The defendants it, that rule is the controlling interpretation of federal law and the Claremont Eagle Times, he was acting pursuant to his official duties, and, The defendants argue that when the plaintiff spoke with the reporter for

applicable. though Garcetti was decided after the jury’s verdict in this case, it is still Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993). Accordingly,

When this Court applies a rule of federal law to the parties before

rule of retroactivity for civil cases which states: We note first that in 1993, the United States Supreme Court adopted a official duties as defined in his job description.

p. 6 newspaper reporter about issues relating to taxation, his speech was part of his

Therefore, we cannot say that merely because the plaintiff spoke with a potential abuses of that system, do not fall within his duties as described. duties, comments about the fairness of the tax system, or that identify 6

information. While some comments in the article could be read as providing assessments, the opinions expressed in the article do not provide such

decision as to whether or not to apply for an abatement? about property valuation that they could make an intelligent

the public about the office’s procedures and techniques would fall within his

communicate with the public about issues relating to property valuation and While it may have been part of the plaintiff’s official duties to

his job duties. We agree. expressing his opinions about the fairness of the tax system, were included in public, he did not testify that speaking with the reporter generally, or that article had the effect of contributing to the goal of communicating with the assessor to communicate to the public enough information The plaintiff contends that while he agreed with a question about whether the than the office’s procedures and techniques. Thus, while communication with the plaintiff is required to communicate with the public on any matter other plaintiff had the following exchange with his attorney: A. Yes, it did. or proposed construction on assessed values.” This item does not indicate that the assessor’s office in “revaluation, abatements, exemptions, and effect of new Q. And in your opinion, did the article contribute to that goal?

A. Absolutely.

Q. And in your opinion, was it part of your job duties as an

to the reporter was done pursuant to his official duties. During trial, the Finally, the defendants contend that the plaintiff testified that speaking explain to property owners and others the procedures and techniques used by communicate with the public. That item states that a duty of the position is to examples is the only one which could be read as requiring the plaintiff to then lists examples of the duties to be performed. Item four on the list of plaintiff’s job description summarizes the nature of the job of city assessor and

practical one,

job description does not reveal support for the defendants’ position. The

see Garcetti, 126 S. Ct. at 1961-62, our review of the plaintiff’s

compel a particular finding and that the proper inquiry in these situations is a mindful that the existence of a requirement in one’s job description does not p. 7 7

(quotation omitted). courts to foster legitimate whistleblowing.” Baldassare, 250 F.3d at 198 public’s substantial interest in unearthing governmental improprieties requires wrongdoing by public employees is especially powerful. . . . Moreover, the speaker in the employee’s side of this balance, the public’s interest in exposing potential way, the plaintiff’s comments were like the protected expressions made by the 2004); see also O’Connor v. Steeves, 994 F.2d 905, 915-16 (1st Cir. 1993). “On on matters of public importance. Mihos v. Swift, 358 F.3d 91, 10 p. 7 7 (1st Cir. communicating, and the interests of the community in receiving, information served by his First Amendment activity, including his interests in We look first to the plaintiff’s side of the scale to assess the interests

of the services it provides through its employees. Pickering, 391 U.S. at 568. interest in his speech outweighs the City’s interest in promoting the efficiency Garcetti, 126 S. Ct. at 1958. To do so we must consider whether the plaintiff’s political, social or other concern to the community. treating the plaintiff differently from any other member of the general public. public concern if it can fairly be considered as relating to any matter of Next, we consider whether the City had an adequate justification for

about the tax system, and how it was used, to the opinions of others. In this on a matter of public concern. about the fairness of the City’s tax system and possible abuses of it, he spoke the record, we conclude that when the plaintiff spoke to a newspaper reporter by the whole record. Connick, 461 U.S. at 14 p. 7 7-48. Based upon our review of determined from the content, form, and context of the statements as revealed F.3d at 51. Whether the speech addresses a matter of public concern is personal interest, the First Amendment value of his words is low. Pierluisi, 339 Baldassare, 250 F.3d at 195. If an employee speaks out only on a matter of

on a matter of public concern. A public employee’s speech involves a matter of analysis required by Pickering. We next determine whether the plaintiff spoke able to take advantage of it. In other words, the plaintiff added his opinions We turn now to the remainder of the first step in the First Amendment shortcomings of the City’s tax system and the ways in which some people were The majority of the plaintiff’s comments in the article concerned the barred by Garcetti. pursuant to his official duties. His First Amendment claim is not, therefore, that when he spoke with the reporter, he was speaking as a citizen and not understanding of the purpose of the article and his role therein, we conclude citizens everyday. See id. at 1960. Thus, regardless of the plaintiff’s significance and bore similarities to communications submitted by numerous

Pickering, whose communication with a newspaper had no official

voice” to other comments critical of the tax system served no such purpose. members of the public information about property valuation, the “adding of his p. 8 Porter’s loss of trust, which does not weigh heavily on the

Thus, the only disruption to which the defendants point is that caused by of the city council with whom the plaintiff had no direct working relationship. person named by the plaintiff as taking advantage of the system was a member

functioning of City government as a result of the article. Moreover, the only

Yazinski both testified that they were not aware of any disruptions in the do not point to any disruptions in the working environment. Porter and than the alleged loss of trust and confidence of Porter, however, the defendants

See id. Accordingly, we conclude that the balance weighs in favor of the

their government employers.” public comment, and that those statements may embarrass or even harass

subverted the relationship of trust and confidence he had with Porter. Other The defendants argue that the plaintiff’s actions conflicted with and

the independent showing of actual and significant harm.” Id. at 845-46. virtue of the employee’s statements. There must be an additional and that his essential trust relationship with an employee was eroded solely by 1985). “It is axiomatic, therefore, that an employer may not be allowed to claim

public employees will inevitably make erroneous statements while engaging in statements on the trust relationship, Pickering “explicitly recognizes that some and brackets omitted). When evaluating the impact of an employee’s detrimental impact on a necessarily close working relationship.” Id. (quotation in the employer’s demonstration that a public employee’s speech had a look to the proximity within an organizational hierarchy as a significant factor plaintiff’s] relatively slight personal interest in speaking out, heavily weighting particularly important.” Baldassare, 250 F. 3d at 198. “Specifically, we must conclude that the “strong public interest in such disclosures supplements [the disruption, the relationship between the employer and the employee is and taken advantage of, certain tax abatements not known to others. We McPherson, 483 U.S. 378, 388 (1987). “In calibrating the significance of the the plaintiff described how at least one city councilor had been made aware, duties or interferes with the regular operation of the enterprise. Rankin v. and confidence are necessary, or impedes the performance of the speaker’s a detrimental impact on close working relationships for which personal loyalty expression impairs discipline by superiors or harmony among co-workers, has Turning to the defendants’ side of the balance, we consider whether the

for [the plaintiff’s] speech.” O’Connor, 994 F.2d at 916 (emphasis omitted). Pickering scale in favor of First Amendment protection against retaliation

comments was directed at the functioning of the City’s tax system. Further, have been motivated by self-interest, the overall tenor of the plaintiff’s that he believed to be unfair. While he did make some comments that could plaintiff recounted various efforts, including his own, to reform a tax system Here, the scale weighs heavily in favor of the plaintiff. In the article, the manner in which at least one member of the city council was unfairly taking

p. 9 defendant in been clearly established. This argument is not unlike that raised by the 9

newspaper reporter about the fairness of the City’s property tax system and the

unclear, there is no reasonable basis to conclude that the law on this issue has

right at issue. case, not as a broad general proposition. Here, the plaintiff was terminated, at least in part, for speaking to a similarly situated reasonable official would have understood the constitutional find this argument persuasive. corresponding factual and legal precedent. Mihos, 358 F.3d at 109. We do not rarely be considered clearly established, at least in the absence of closely

Mihos that when a right is subject to a balancing test, it can

The defendants appear to argue that because this area of the law is so

201 (2001).

at 109. This inquiry must be undertaken in light of the specific context of the right was clearly established at the time of the violation; and (3) whether a reasonably well settled at the time of the challenged conduct. Mihos, 358 F.3d whether the plaintiff has established a constitutional violation; (2) whether that established, we note that this inquiry seeks to discover whether the right was test to determine whether a public official is entitled to qualified immunity: (1) the trial court’s determinations under Turning to whether the plaintiff’s First Amendment right was clearly

been met. a constitutional violation under that test, we conclude that the first factor has test, and because we have already determined that the plaintiff has established reasonable person would have known.” on the first criterion requires application of the First Amendment retaliation violate clearly established statutory or constitutional rights of which a 151 N.H. 30, 48 (2004) (setting out test from Mihos). Because a determination are shielded from liability for civil damages insofar as their conduct does not Mihos, 358 F.3d at 102; see also Porter v. City of Manchester,

United States Supreme Court precedent, the First Circuit employs the following protected speech – thus, we do not address them. We conclude, therefore, that F.3d 140, 146 (1st Cir.), motivating factor, and that the City would not have acted as it did absent the cert. denied, 540 U.S. 1017 (2003). Drawing upon of the retaliation analysis – that the protected activity was a substantial or which we review de novo. Id. at 102; see also Jarrett v. Town of Yarmouth, 331 omitted). The trial court’s denial of qualified immunity is a legal question,

immunity. “Government officials performing discretionary functions generally The defendants next contend that Porter is entitled to qualified

the defendants do not challenge the conclusions relative to the final two factors plaintiff and that his speech was protected activity. Additionally, we note that p. 10 10

jury on the according to the defendants, they requested that the trial court instruct the

did not err in denying Porter’s request for qualified immunity. the jury about the Pickering test in their closing arguments and erroneously they contend that the trial court erroneously prevented them from informing but the trial court erroneously refused to give the instruction. Additionally, sufficiently aware of the reasons for the plaintiff’s termination, unlike Pickering test so that it could understand Yazinski’s conclusion,

The defendants challenge several rulings by the trial court. First,

from liability by the receipt of legal advice, and we conclude that the trial court Accordingly, we do not agree that under V-1, Porter is automatically insulated legal advice could not be appropriately tailored to the facts of the controversy.

to the article. We conclude from this testimony that because Yazinski was not he was operating under the belief that the plaintiff’s termination was unrelated unreasonably. discussed the issue with Porter. This was so, according to Yazinski, because terminating the plaintiff, there is no basis to conclude that he acted thought about the issue of the plaintiff’s First Amendment rights, he never Amendment rights did not come up. Also, Yazinski testified that although he plaintiff’s termination with Yazinski, the issue of the plaintiff’s First controversy. Id. Here, by contrast, Porter testified that when he discussed the and who could, therefore, tailor their advice to the specific facts of the was given by attorneys fully informed of the factual and legal issues in the case rights. One of the bases for the court’s determination was that the advice relied upon qualified immunity because he relied upon the advice of counsel. Id. at 1489. We find V-1 distinguishable. In V-1, a state official was found to have

because Porter relied upon the advice of Yazinski, the city solicitor, prior to Quality, 902 F.2d 1482 ( p. 10 10th Cir.), cert. denied, 498 U.S. 920 (1990), that defendants contend, based upon V-1 Oil Co. v. State of Wyo. Dept. of Env. mistake about what the law requires was objectively reasonable. Id. The established a constitutional violation, Porter is still entitled to immunity if his Mihos, 358 F.3d at 110. Thus, even though the plaintiff has position would have understood his actions to have violated the plaintiff’s Finally, we analyze whether an objectively reasonable official in Porter’s

Attorney’s Office of Suffolk, 298 F.3d 81, 94 (1st Cir. 2002). Amendment right to speak was clearly established. See Suboh v. District are sufficiently analogous to those in Pickering that the plaintiff’s First “adding his voice” to other public complaints. We conclude that the facts here spoke directly to the public on a matter of substantial public concern by advantage of that system. Like the plaintiff in Pickering, the plaintiff here testimony was an unsustainable exercise of its discretion.

p. 11 defendants have not shown that the trial court’s ruling relative to Yazinski’s conclusions he reached from that analysis. Accordingly, we conclude that the desired, he did testify about his analysis of the First Amendment and the

Therefore, while Yazinski might not have testified in the manner the defendants concluded that the First Amendment did not bar the plaintiff’s termination. plaintiff’s First Amendment rights. Additionally, Yazinski testified that he termination was unconnected to the article and thus unconnected to the

defendants’ arguments are either not preserved or lack merit. termination and its connection to the article. The plaintiff contends that the

overturned absent an unsustainable exercise of discretion. but that he did not discuss them with Porter because he believed the plaintiff’s the introduction of evidence or the scope of cross-examination will not be however, testified that he considered the First Amendment and its implications, upon that analysis when deciding whether to terminate the plaintiff. Yazinski, his analysis of the relevant First Amendment issues even though Porter relied The defendants contend that Yazinski was not permitted to testify about

unreasonable to the prejudice of his case. Id. must demonstrate that the trial court’s ruling was clearly untenable or defendants, these errors resulted in the jury being misled about the 2007). To establish an unsustainable exercise of discretion, the defendant Realty Trust v. A & T Forest Prods., 155 N.H. __, __ (decided February 28, a way that the jury could have been misled. Blagbrough Family in its entirety, fails to explain adequately the law applicable to the case in such As to the testimony of Yazinski and Griffin, a trial court’s ruling about

closing arguments. to prohibit the defendants from presenting the Pickering test to the jury during jury. For the same reason, we conclude that it was not error for the trial court the trial court did not err by not including the Pickering test in its charge to the Pickering is an issue of law for the court. Pierluisi, 339 F.3d at 51. Therefore, test. Even assuming this issue was preserved, the balancing of interests under understanding of the First Amendment issues in this case. According to the that the trial court erred by not instructing the jury on the Pickering balancing part-time planning and economic development director for the City, about his Id. Here, the defendants contend improperly denied them the opportunity to question Steve Griffin, who was the case, we review jury instructions in context and will reverse if the charge, taken Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 834 (2005). In a civil to the jury such that no injustice is done to the legal rights of the parties. A jury charge is sufficient as a matter of law if it fairly presents the case

Amendment issues at stake. Finally, they contend that the trial court prevented them from questioning Yazinski about his understanding of First p. 12 New Hampshire in favor of informing citizens about matters of public concern

plaintiff counters that during trial he asserted that there was a public policy in the jury during its deliberations in a manner meant to favor the plaintiff. The emphasis during the jury instructions and was later typed and submitted to trial court’s error was compounded when Part I, Article 8 was given special

an expert without proper disclosure. evaluation of the First Amendment. the defendants object to the trial court’s ruling that he was being presented as determination of a fact in issue,” permitted Griffin to testify about his perception and is “helpful to a clear understanding of the testimony or the instruct the jury on that provision. The defendants further contend that the only claim under the New Hampshire Constitution, there was no need to According to the defendants, because the plaintiff had expressly waived his to the jury regarding Part I, Article 8 of the New Hampshire Constitution. The defendants next contend that the trial court erred in its instructions

III. Part I, Article 8

issue of Griffin’s testimony has not been preserved for our review. defendants contend that Griffin was entitled to give non-expert opinion, nor did the trial court’s ruling was “fair enough.” Accordingly, we conclude that the “Okay, all right, fair enough.” At no point during the conference did the upon to testify as an expert without proper disclosure, but instead stated that certain non-expert opinion testimony when it is based upon the witness’s never objected to the trial court’s determination that Griffin was being called is grounded in common sense and judicial economy. Id. Here, the defendants affords the trial court an opportunity to correct any error it may have made and review.” Cloutier v. City of Berlin, 154 N.H. 13, 22 (2006). This requirement contemporaneous objection during trial to preserve an issue for appellate “It is well established that a party must make a specific and

of an expert and there’s been no disclosure.” The defendants responded: defendants argue that New Hampshire Rule of Evidence 701, which allows trial court found that the defendants were “trying to present him as some sort because no foundation was laid for his opinion testimony. On appeal, the foundation had been laid for his testimony. At the end of the conference, the First Amendment because he had not been disclosed as an expert witness and whether Griffin had been disclosed as an expert and whether a proper the plaintiff objected. At the ensuing bench conference, the parties debated plaintiff’s termination violated the First Amendment. Before he could answer, During trial, the defendants asked Griffin whether he believed the

asking Griffin whether he believed terminating the plaintiff would violate the As for Griffin’s testimony, the trial court prevented the defendants from termination claim.

available to the plaintiff under state law to $150,000, but does not limit the According to the defendants, RSA 507-B:4 limits the amount of damages

not misguided or meritless and the jury could properly rely upon it. claim. As we have held, however, the plaintiff’s First Amendment claim was wrongful termination case was based upon his “misguided” First Amendment remit the verdict based upon the municipal liability cap in RSA 507-B:4. The defendants’ final argument is that the trial court erred in failing to

issue waived. not properly before us, but, even if it is, it is erroneous. V. Municipal Liability plaintiff’s wrongful termination claim. The plaintiff counters that this issue is

we reject the defendants’ argument. According to the defendants, the plaintiff’s Assuming for purposes of this opinion that the issue has been preserved,

Accordingly, because no objections were made on the record, we consider the submission of the constitutional provision to the jury during its deliberations. the plaintiff’s First Amendment claim, the jury had no basis to uphold the reveal any objection. We are likewise unaware of any objection to the First Amendment claim.” According to the defendants, absent reliance upon record where such objection was raised and our review of the record does not that “the primary thrust of the bad faith – retaliation theory was the misguided termination, the plaintiff had to demonstrate the existence of bad faith, and The defendants next argue that to prove his claim for wrongful

not preserved. plaintiff argues that the defendants never objected and, therefore, the issue is Part I, Article 8 was given over their objection, they point to no place in the Here, although the defendants argue that the trial court’s instruction on

778 (2005). record before the jury retires. Carlisle v. Frisbie Mem. Hosp., 152 N.H. 762, review. Id. All objections to a jury charge are waived unless taken on the contemporaneous objection during trial to preserve an issue for appellate As noted, it is well established that a party must make a specific and

the jury in determining whether such a policy existed. Additionally, the and that including Part I, Article 8 in the jury instructions was meant to aid p. 14 RSA 507-B:4, if applicable, liability shall not exceed the policy limit or the limit specified in insurance or as to governmental units defined in RSA 507-B,

were given under federal law or state law. wages and benefits and his award of emotional and mental distress damages

shall not exceed the limits of coverage specified in the policy of

federal law. The parties disagree as to whether the plaintiff’s award of past under state law, and that the award of punitive damages was made under agree that the plaintiff’s award of enhanced compensatory damages was made upon federal law, it is not subject to the cap in RSA 507-B:4. The parties also forth by statute; provided, however, that liability in any such case standard of care differing from that of a private corporation is set determined as in the case of a private corporation except when a was given a special verdict form that required specific findings on the plaintiff’s Our review of the record does not clarify the issue. The jury in this case

not yet ripe for our review. argues that a determination of the actual amount available under state law is

The parties agree that to the extent any award to the plaintiff was based

(Emphasis added.) performance of governmental functions, and its liability shall be defense immunity from liability for damages resulting from the municipal subdivision thereof shall not be allowed to plead as a such limit. a risk so insured against, the insuring company or state or abate any verdict in any such action to the extent that it exceeds

B:4 cap, but contends the remaining damages are not. Also, the plaintiff

any municipal subdivision thereof to enforce liability on account of insurance described in RSA 412. In any action against the state or administrative unit or other district, to procure the policies of that the award for enhanced compensatory damages is subject to the RSA 507- including any county, city, town, school district, school damages, attorney’s fees and expert fees are not. The plaintiff, in turn, agrees It shall be lawful for the state or any municipal subdivision thereof, distress, and enhanced compensatory damages are limited, while the punitive RSA 507-B:7-a (Supp. 2006) provides: person in actions brought under this chapter is limited to $150,000.” However, for bodily injury, personal injury or property damage sustained by any one RSA 507-B:4, I, states, in relevant part: “Liability of a governmental unit

argue that the awards given for the plaintiff’s wages and benefits, his emotional amount of damages available under federal law. To that end, the defendants of damages;

federal law, because it is not subject to the cap, will better advance the purpose plaintiff ought to collect. Allowing the plaintiff to collect the award given under awarded $ p. 15 151,200 in enhanced compensatory damages. As quoted above, RSA federal law is not subject to the cap in RSA 507-B:4, it is that award the however, the plaintiff may collect only one award, and since an award under

of enhanced compensatory damages under state law. The plaintiff was We address briefly the application of RSA 507-B:4 to the plaintiff’s award to conclude that the award was made under each theory of liability. Since, liability are alleged. regard to the cap in RSA 507-B:4. claim multiple recoveries for the same loss even though different theories of damages awarded by the jury for lost wages and emotional distress without distress. Accordingly, we conclude that the plaintiff is entitled to collect the This same analysis applies to the award for the plaintiff’s mental and emotional he would have been had the injury not occurred. Philips, 138 N.H. at 248.

i.e., putting the plaintiff as nearly as possible in the same position

was made, and because the plaintiff prevailed on both theories, it is reasonable § 1983. verdict form does not indicate the theory or theories under which the award This conclusion is in accord with our jurisprudence that a plaintiff cannot plaintiff is entitled to only a single recovery for his lost wages. Because the reporter. Thus, even though he has alleged multiple theories of recovery, the the same set of operative facts, i.e., retaliation for speaking with a newspaper were given under state or federal law, both of the plaintiff’s theories arise from for example, the damages awarded to the plaintiff on his claim for lost wages Nahmod, Here, although the jury’s special verdict form does not indicate whether, recovery for the same actual damage, whether special or general.” 1 S. claim is joined with a § 1983 claim, “courts have been careful to avoid a double Transmedia Restaurant Co. v. Devereaux, 149 N.H. 454, 461-62 (2003).

held that state law limitations on damages may not be applied to claims under the cap in RSA 507-B:4, and that a plaintiff is not entitled to a double recovery. § 1983 and claims under state law, the claims under § 1983 are not subject to that when a suit against a governmental unit involves both claims under damages, the only items not implicated in this debate. § 4:1, at 4-5 (4th ed. 2006). Applying these general principles, we conclude

Civil Rights and Civil Liberties Litigation: The Law of Section 1983

§ 10:5, at 149-50 (Supp. 2007). Additionally, we note that when a state law Brodensteiner & R. Levinson, State & Local Government Civil Rights Liability (Wis. 1984); Rogers v. Saylor, 760 P.2d 232, 238-39 (Or. 1988); see also 4 I. E.

See, e.g., Thompson v. Village of Hales Corners, 340 N.W.2d 704, 711

We are unaware of any precedent directly on point. Several courts have

to specific claims were for enhanced compensatory damages and punitive two claims and on each item of damage to be awarded. The only damages tied vacated. We agree. p. 16 contends, the jury’s award of no money for lost future wages ought to be

asserted facts not in evidence, and prejudiced the jury. Therefore, the plaintiff twenty years.” According to the plaintiff, these comments were irrelevant, front pay damages would burden them with paying for two salaries for the next have to pay for any judgment awarded, and that in particular, an award of

Manchester, 140 N.H. 403, 406 (1995) (quotation omitted). “For example, the or sympathy in a way not supported by the evidence.” Walton v. City of “During closing argument, counsel may not appeal to passion, prejudice

review. damages cannot yet be determined. Accordingly, this issue is not ripe for

the work of city assessor over a 20 year period. the kind of award he’s asking for, the taxpayers will pay twice for comments was to warn jurors that “they, their friends and relatives, would Porter and those same Claremont taxpayers. If Mr. Snelling gets The plaintiff argues that the sole reason for the defendants’ attorney’s asking you to make a big money award that will be paid by Bob

prejudice, fear or favor, for or against any party.” instruction to the jury stated that it was to decide the case “without sympathy, the job.” The trial court gave no curative instruction, but during its general continued: “Once for Mr. Snelling and once for those people who actually do limit of the defendants’ liability on the award for enhanced compensatory remainder of the award. The plaintiff then objected, but was overruled and the defendants’ attorney for future lost wages and benefits, a result that was inconsistent with the jurors. According to the plaintiff, this resulted in the jury awarding no money

concern was for the taxpayers of Claremont when in this case he’s I can’t tell you why Mr. Snelling told us repeatedly that his greatest

During his closing argument, the defendants’ attorney stated:

yet been ascertained whether insurance coverage exists, and, therefore, the insurance coverage through a declaratory judgment action. Thus, it has not policy limit, whichever is higher. The defendants are currently pursuing argument the defendants’ attorney appealed to the personal biases of the The plaintiff’s sole claim on his cross-appeal is that during his closing

recovery is capped at either $150,000 under RSA 507-B:4, or at the insurance 507-B:7-a provides that if a municipality has insurance, the amount of p. 17 17

the jury’s award of no money for lost future wages must be vacated. therefore, that the defendants’ attorney’s comments were improper and that unlike mentioning the availability of insurance coverage. We conclude,

specially assigned under RSA 490:3, concurred. DUGGAN, J., concurred; MOHL, J., retired superior court justice, potential financial impact to a defendant of having to pay an award is not how that relates to the evidence presented at trial. Commenting on the City’s taxpayers of having to pay the plaintiff’s future lost wages would be, or Affirmed in part; vacated in part; and remanded. bias or prejudice. Moreover, it is, at best, unclear what the effect upon the consistent with this opinion. In all other respects, we affirm. wages and benefits is vacated and the case remanded for further proceedings For the above reasons, the jury’s award relating to the plaintiff’s future

jurors to decide the issues before them and were designed to appeal to their Here, the defendants’ attorney’s statements were unnecessary for the

Id. (quotation omitted). general rule is that the unnecessary mention of insurance is reversible error.”