Appeal of Keith R. Mader 2000 Revocable Trust et al.

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This is Case 2019 0 0 6 1. Appeal of Keith r Mader, 2000 revocable trust, et all. Morning, your Honor. Morning. Good morning.

Morning, your honors. Uh, my name is Randall Cooper. Uh, I am here on behalf of the 13 property owners at the Barefoot Creek Condominium, who appealed, uh, uh, their, uh, the reassessment or reevaluation of their property, uh, sought an abatement. Uh, I would like to take four minutes if I could, to address, uh, an issue of statutory interpretation that I bounced around in a cannon of it in my brief, but didn't quite focus on. Can't Guarantee you the four minutes, but I'll do my best. The significant issue in this case is the fallout in the response of the legislative action 1996, allowing non-lawyers to practice law that allow tax abatement and I, and the result in cottage industry. I'm not sure how lawyers got caught up in the creation of rule 2 0 3 0.02, but that's the importance in this case. In the Wilson and Henderson. Henderson holdings, this court narrowly interpreted the rule and the, basically the statute not address addressing its impact on the agents, but not on the lawyers. And, and, and that is because one of the canons of statutory interpretation is not to depart from the common law unless that intent is clearly expressed by the legislature. Uh, I refer this court to, um, state versus E-T-I-E-N-N-E 1 63 New Hampshire 57 at page 74. And it's interesting, and in the head notes, Westlaw and everything doesn't come up, but you find this paragraph there, which is very important for it states. As we have often stated, we will not interpret a statute to abrogate the common law unless the statute clearly expresses that intent. And the common law was clear and has been clear since actually, uh, the case of Alton versus ton two, New Hampshire two 50 dating all the way back to then that lawyers are the agents of their clients and provided their acts within the scope of their authority. The taxpayer is bound by the acts of admissions of the attorney, and that is in Paris versus city of Portsmouth. And in what the town cited is American Sample Book Company versus the Board of Taxation one 16 New Hampshire 5 75. Common law was clear attorneys represented their clients. I mean, and what's interesting is the major problem in this case is both the BTLA and the town take the position that the taxpayer is bound by the emissions of the attorney. And then hypocritically claim that the taxpayers cannot be affirmatively, uh, benefited by the acts of their attorney and actually signing and certifying as to the accuracy, good faith basis and everything else. So when this court addressed this signature of the non-lawyer agent in Wilson, it stated that if the legislature had intended, and this is in, um, to, uh, that intended a representative signature to suffice, it would've so stated correspondingly, if the legislature had attended that an attorney's common law signature on behalf of HI or her client making the required certification was not allowed. Then it, it should have clearly stated that as well. So you're saying that the the rule is ultra virus? Yes. Did you develop that argument? Yes. Okay. No, no, absolutely. I said that the rule attorney claims you did, huh? Attorney Hi, claims that you didn't. Well, I'm sorry, but it's, it's the rule. I stated clearly in my, uh, clearly in both the issues and, and in the brief that the rule did not, uh, the rule was not applicable to attorneys because it, I I don't know how, I mean, the power of the, the Board of Tax and Land Appeals as an administrative agency is derived by statute. And so then they have a power to make a rule. And certainly the statute allowed 'em to make a rule on the form. But what they did is they, in, in interpreting that rule, in trying to get at the boogeyman of the, the non-lawyer representative, they included the lawyer who by common law had always had the right to be able to appear. You know, whether it's, I, I, you know, yes, I think I did. Did I say Veris? No. Did I use that term? No. So another way to put your argument is that if the legislature had, uh, said in the statute, uh, 7 76 16 that a lawyer's signature won't suffice, then you would live with that. But that's not what they did. No. And matter of fact, more importantly underneath that, it says you don't even have to use this form. As a matter of fact, this is all supposed to, this is supposed to be remedial in nature. But Didn't we reject that argument in Wilson? Yeah, You did reject that argument. But again, that was Are you saying we should overrule Wilson? Do we need to overrule Wilson? No, you don't have to overrule Wilson. Do I think you should or could different issue? You don't have to, because Wilson was specific to agents, and I think that's, that was the problem. Uh, uh, it, the, the, the statute that, uh, that addressed the, the form was adopted in 19 94, 1 year, that that codified the need to have this form. It was a year later that the legislature then, uh, made this non-lawyer exception that they can now practice law in 1995, they can practice the law of tax abatements. And it wasn't, I don't know when this rule adapted, but I think it was even, I think it took four or five years for it to get developed. At which point this industry, I mean the, the, what they, this industry got going and, and as in the case of Wilson, you had someone who went and got someone to sign a piece of paper, then went and signed the tax abatement, didn't do any, you know, just signed his own name, and off they went. You know, we don't know how many of these were and so on would Be, we be in a different position. If you had appealed to superior court instead of, pardon? Would we be in a different position if you had appealed to superior court rather than the BTLA? Well, And Henry, in, in the second case in Henderson, you had already in Henderson, the only issue would've been, I would've had a superior court judge deciding, uh, on whether justice required as compared to this, this mud field of wi, you know, willful neglect of, uh, uh, of whether justice required that these, these, these particular taxpayers were entitled to their day in court. I mean, that's the other, Just let me sidetrack you a little Bit. I love to where In its statutory authority does the BTLA have the jurisdiction to determine what is willful neglect? Well put it this way. When you upheld, when you upheld their rulemaking authority in Wilson, and you then later talked about it in Henderson in saying they have a similar out, one of the important thing about Henderson is you said this was not a jurisdictional issue if the person didn't sign it in order to go to the town. But you gotta remember, this application is only to go to the town. The rule prevents the appeal. So it's funny, I can sign the appeal, which I did to the BTLA, I just can't sign the form that goes to the town, which prevented the appeal. Now, I don't know where that you upheld it. Uh, The town dealt with, the town dealt with and denied the appeal. That's correct. Regardless of the signature require. That's correct. And so, uh, I don't know where they got that jurisdiction, but all I can say is you found it in Henderson. You said it was fine, because they have this out phrase, willful neglect. Uh, and as long as they can show that, and then they're, you know, so what it is, I mean, that's, you know, I'm not what is willful neglect? There's not a well-developed body of BTLA decisions on that. That is correct. Yeah. Uh, the, the few that are out there is one that defines it. And there's one, I mean that, you know, but all I can say is in the two days that I had, I mean, yes, I returned to the United States on, it's not in the record, at five o'clock Monday night, I came into the office on Tuesday. All I know is in the two days I had with three days with, uh, all of the clients being out of state, one of them in Florida, I thought I had to do what I did. The BTLA indicates that you could have gotten facts signatures. Is there anything in the rules or the statute that alerts you that you might have been able to provide signatures by fax? No. Or by email, or, there's nothing, there's nothing out there that says, uh, anything other than, And as an attorney subject to all sorts of ethical rules and responsibilities and bar requirements isn't, I mean, would you equate your signature on behalf of your client? Well, I, to a fact signature, Well, I did it. And, and what was interesting in the Wilson case as well, is what was important to this court, that there was no such certification as to the accuracy and the, and the good faith basis. Well, I mean, you look at 'em, I said, Joe Jones, or you know, in this case, you know, by Randall f Cooper, his or her attorney, I certified that the facts were true and I certified that there was a good faith basis. Everything was there. You know, I mean, and if you, if you take the statutory, uh, uh, the cannon that you don't overrule a common law, unless they're clear about it, then the whole legal protection thing is unnecessary because guess what? Attorney law during, in fact, doesn't matter Saying, Mr. Cooper, what's your argument that this failure to sign was due to reasonable cause and not willful neglect? What, what's Reason? Cause cause I mean, the reason Are you saying, I'm sorry. Reasonable clause, uh, judge was the fact that it was time limited. I got back, I mean, my representation in my mind was conditioned upon me being gone. And when I got back, I did not have time when I understood the requirement was to get the Signature. And you hadn't been retained before you went on vacation? No, I had. Well, That while you were away, the retention letter came. Is that correct? Is that correct? And, and you know, I, one of the, not that it was required, one of the interesting things in this is there was no eerie, so there's no opportunity for anyone to ask me any questions or me trying to out guess what they wanted. I mean, I worked out of my home. I, yeah, I'm of counsel. I retired in, you know, in, in 2012. So, and I still do a few things, so it's not as if I have a secretary or anybody. So it's, Are, are any of the material facts about, um, either the legal issue or the, this reasonable cause issue? Are they in dispute or are No, I mean, all the facts. I, I put, put it this way, I, I thought I put in my affidavit, in the pleadings, the facts that were necessary to be able to establish that I acted reasonably. Uh, and They haven't been challenged, have they, the facts that you laid out in terms of what Happened? No, they just, they just have been say statements by you could have gotten this signature. I mean, you know, and my brother, uh, you know, said, you know, there's a lot of who coulda, shoulda there. But I mean, I, I you, but, but what is The, what is the specific argument? Maybe we'll hear it in a minute. What is the specific argument that what you did was unreasonable? That I just, I think that I just intentionally signed it on behalf of my client. You mentioned a brief moment ago, attorney at law, equivalent to attorney. In fact, would that cover the non-attorney representative as in Wilson, If they in fact were got a power of attorney, attorney Not just representative of, but a full power of Attorney? Okay. What I'm saying is we are different. We are, we are a lawyers. We, as I said, if you go back and look at two New Hampshire, whatever that, you know, two New Hampshire, five 20, we are, it's interesting. It goes all the way back to 1823. We, we, we act as agents and we bind our clients whether they like it or not. So you don't need a power Of attorney if you are an attorney. Is that your Argument? That is correct. You know, that is correct. You know, we are, I like to say it. I love my profession, and we are a profession, and that's our job to represent our clients. And the idea that, uh, but as I also said, if I had the time, I wouldn't have, I didn't want to be here. You know, if nobody wants to be here, I would've rather been arguing the merits of this case long ago. That makes six of us, Huh? So, um, I have a little more time, but if you Thank you very, don't need To use it. Thank you. Thank you, counsel. Uh, may I please this honorable court?

My name is Chris Hilson. I'm an attorney with Donahue, Tucker and Chandela. I work out of our Exeter office. I represent the, the town of Bartlett. Um, as you expect, uh, I ask that the court uphold and affirm the rulings of the BTLA. Um, as a threshold matter, You were also kind enough to waive oral Argument. I was, uh, number, you can Still do it if you want to. Well, I might as well say I'm, I'm here. I drove up here in the suite, so I might as well try, right? Uh, as a housekeeping matter, feel free to interject questions, uh, whenever you'd like Your client, the town of Bartlett accepted the application

with Attorney Cooper's signature. It did, Indeed. Should we consider that and juxtapose that with the B TLAs decision? I'm not sure it's relevant to that decision. Um, I guess what I'd also say is what, again, to get to your question, the facts aren't really in dispute here. This was a bare bones application or applications, plural. I almost think that it was insufficient, given its lack of specificity. But that's not an issue. Uh, before you, there was no appraisal done. It was, these, these applications, if you look at them, they were on the personal knowledge of the taxpayer. They, they say personal knowledge, But your client was prepared to deal with them on the merits. They, they dealt with them on the merits. They denied them because they didn't have the, a, the, the appraisal. They didn't have the meet, uh, to them. So they were denied as a matter of, Uh, but that's not an issue here. That's not why you're, that's not an issue. Right. So they may have expected, your clients may have expected the BTLA to follow suit and perhaps deny it on the merits. Then maybe If the merits were Born, this was sort of a, a windfall, if you will, that the BTLA pulled the signature Required. The BTLA acted responding, yeah. In this matter, uh, it was before our, our engagement, my firm's engagement, uh, in this matter. So if we were to remand this, what would the BTLA do with this? Would they, would they accept an appraisal at this point in time, or is it the, the record confined to the date of filing? My understanding is the appraisal is already on file. Um, I, I think if you were to remand the case would proceed on its merits, irrespective of the failure of the taxpayers to actually sign the applications. It's my understanding How this would, in terms of our standard of review. Do you agree that we can vacate or set aside if we think the order is unjust or unreasonable? I do, but I think the standard, getting to the standard of review, it's actually a very shallow, uh, standard of review. Uh, my understanding of the case law is you need to look at the record and see if there's anything in the record that would support the B TLAs finding, uh, that the taxpayers didn't sustain their burden of establishing a reasonable cause and not willful neglect. It's, again, my, my understanding of the case law is very shallow review, and I would submit it's amply supported by, uh, the, the record in this case. So, so in terms of whether something is unjust or unreasonable, we have to accept the b TLAs assessment of that. They didn't make an assessment of whether it was unjust or unreasonable their decision. That's what we're charged with doing. They made a factual finding, my understanding of the record, they made a factual finding that the taxpayer did not carry their burden to establish that there was reasonable cause and not willful neglect in this matter. Right. But that seems to me to be different whether we consider their order to be unjust or unreasonable. I would agree, except that the case law that I've read suggests your role is to look at the record and see if there's anything, it, it's unjust and unreasonable if there is nothing in the record to support that determination. That's, that's my understanding of the standard. Um, and again, I, I think there's ample, uh, uh, evidence in the record, uh, to support this finding. I mean, I, if you, if you look at the record, and this isn't brought out in the briefs quite as, as much as it should be, there's nothing in the record to suggest that taxpayer counsel actually spoke to these taxpayers, taxpayers counsel spoke to the declarant of this condominium. And so there's another level of agency in between, uh, the taxpayer's counsel who signed the application and the actual taxpayer, uh, here. Beyond that, there's no, uh, suggestion that any effort was made to, uh, garner facsimile signatures. And, and to get to your question, where, where's the authority for that? So if you look at 2 0 1 16 tax, 2 0 1 16, that does contemplate both original and fally signatures, and there's nothing in the rule and would Elevate that above an attorney's signature. I, what I'm going on is what the rule says, uh, and I, I know there's a, there's an, there's a suggested ultra virus challenge to that rule. I don't think it's developed in the record. If you look at, at page 16 of the brief, there's a reference to that. There's a paragraph in the summary of the case. It's not developed. Instead, the, the question presented is whether or not the BT a's interpretation of 2 0 3 0 2 works an equal protection, uh, violation. And so I, I respectfully submit, uh, that, that the ultra virus, uh, challenge to the rulemaking authority of BTLA and this particular issue has not been preserved or even briefed. Well, I'll that, go ahead. I was gonna Say, the focus appears to be on what the attorney could have or could not have done. But isn't this not unlike client close to the deadline, reaches out to an attorney, attorney is, you know, time constrained and does what the attorney can do. I, I, and I'll concede if I were in my brother's shoes, I probably would've operated in the same manner. Alright. The time constraints are what they are. Yeah. The b TLAs finding, however, is I, I think number one premise on the fact that the taxpayer only reached out to counsel late, relatively late February 7th. Uh, the taxpayers were aware that taxpayer counsel would not be available until the 27th, uh, 48 hours, uh, beforehand. And I, I think what's important here is there was no effort, uh, to do that. I think that's where the willful, uh, neglect comes in. You, you gotta try, you, you gotta try to get the, or Maybe the taxpayers, are you saying the taxpayers should have what gone somewhere else or done something Different? I think that waiting to the, to the end hour, the 11th hour has consequences. Um, it, it does for us, it does for everybody in society. And, and so, uh, so I, I guess what I'm saying is there is ample support in the record to sustain this finding, uh, that the Taxpayers, Mr. Cooper says that, uh, we don't have to overrule Wilson to go with him, but rather distinguish Wilson and that Wilson was dealing with agents, and this case involves, uh, an attorney at law. I don't see how you do that given the express text of 2 0 3 0 2. I mean, well, you look to the statute, you look to the statute, and the statute still says that the applicant needs to sign. Well, No, actually that's the point I was gonna raise. Uh, under 76 16 3, it just says the form has to have a place for the applicant's signature as opposed, that's G Yep. As opposed to E, which says a section requiring the applicant to state with specificity. So it seems to me the legislature knew how to say three lines above. It says the form must require, and here it says only that there needs to be a place for the applicant's signature. Isn't that a difference with significance? But I don't know how you square that with ruling in Wilson. I, I, the, in other words, the BTLA in its rulemaking authority, and with the statutory mandate that, that it create these forms consistent with that statute has created the forms with that requirement. And both the statute and the rule require that the, the facts in the application be certified as true. Not that the facts be certified as true upon the reasonable belief, true upon the representation of the client. In other words, what's happening here or what's being requested of this court is essentially to turn the, the certification that the facts are true, period. That, that's what it says. You're turning that from that statutory mandate to essentially what you have in tax 2 0 1 16, which basically says we, we believe them to be true upon information and belief with reasonable inquiry. W we as attorneys do not swear to the facts as represented to Our client. That's funny. I'm not so sure about that old writ forms. There was that line on the right hand side where the client would sign or the attorney would sign, and the either way it was accepted, if the attorney signed and there were some problem with the facts sworn to and the writ, it would be on the attorney. But if you think about, if you use that analogy with the pleadings, there are different types of pleadings. We demand that some pleadings be executed under oath. They'd be verified, attachments, adjunctive relief. We've hold them to a higher level. We, we require that the client swear out, uh, those particular pleadings. And it's the same here that the property taxation vehicle is our main revenue creation source here in New Hampshire. We cannot have a situation where there's some ambiguity, there's some space between perhaps what the client represented and what the attorney heard or the agent heard. This needs to be sworn as true. But it seems to me you're, you're essentially making a jurisdictional argument. Whereas, you know, in, in Henderson at which was decided after Wilson, there's a discussion about that. We try to avoid narrow unforgiving approaches. And here it's the argument you're making seems that odds with the language of the regulation, that's supposed to give some out, essentially. But you're basically saying if there's not the signature from the property owner, you're gone. What are the circumstances where that clause would come into effect? You're, you're right. The, the, the rule has what I would call a relief valve. Uh, and the BTLA found that the taxpayer had not met its burden to establish that. I would suggest to you that if there was an attempt articulated to obtain the taxpayer's signatures an email, you know, some sort of, I, I got, I was able to get five out of 13, but I couldn't reach the, the, the balance, you know, the other, the other seven or eight. Um, I, again, you're asking me to put myself in the BTLA shoes. Were I sitting on the BTLA? I'd say you have discharged your obligation at that point. That's not what happened here. I think the B TLAs ruling is premised on the fact that the taxpayers retain a well-respected firm with a number of different practitioners. This could have been delegated to, uh, and it wasn't. And there was a unilateral decision to, to sign these on behalf of The, so one more affidavit saying attempt was made to contact the clients for signature, and that would be sufficient. It is not the affidavit. I, I guess what I would say is the actual attempt to discharge that obligation, I think that Made the David, it was going to be fruitless, given the time constraint. I'm not so convinced that it would be fruitless. We live in a modern age, you can sign things and scan them back. It happens all the time in our practice. It it, But it's Justice Six pointed out there's no authority in this portion of the statute or rules that authorizes that. There's nothing that prohibits it. It Nothing directly There. There's nothing that prohibits it. And another rule actually appears to contemplate it 2 0 1 16. So I, I, again, you're asking me to put myself in the mind of the, of the lower tribunal, if there wasn't this unilateral decision, uh, to, to sign on behalf of the taxpayers and there was some attempt, you gotta at least try, I, I think we wouldn't be here. Uh, right now. That's, again, that's my opinion. So I'm not familiar with 2 0 1 16. What does it say? 2 0 1 16 is the, is the administrative rule pertaining to motions and pleadings, and it talks about what happens, uh, what are the consequences of somebody signing a motion or pleading before the BTLA? And it's what you would think, you know, the facts in the motion or pleading are based upon, you know, reasonable, uh, inquiry are based upon, uh, you know, the signer's knowledge. And it talks about either the original signature or the facsimile of that signature carries those consequences with it. So I, what I'm advancing to this court is the rules clearly contemplate that you can use a fac, But 2 0 3 0 2 D doesn't mention facsimile or copy or anything where talks about a requirement for a signature. It doesn't say original. It does not say facsimile. It doesn't say either. It just says the signature of the Taxpayer. So if we're not supposed to be hyper-technical here and have a liberal construction, why shouldn't the taxpayer or the attorney have the benefit of the doubt given that it just says signature? And you could reasonably construe that to mean it's gotta be the real John Hancock. I, I would submit to you that there is a distinction between attorneys at law and attorneys. In fact, we cannot, I I mean, I I I advanced it before. I still believe that when we file a pleading, we have based it upon reasonable inquiry with our client. But we are still getting that information from our clients from third sources. It's not the taxpayer who is certifying it. And in this case, this is a very factually sensitive application. It has to do with, uh, special feature assessments on another condominium, on this ski slope. It has to do with personal belief of the real estate market. So you believe power of attorney could sign I I it's not just a believer attorney. In fact, I think, I think they could. BTLA would accept that. I think they would. I think they would. And, and if you think about how, uh, powers of attorneys are used, not exclusively, but they are used in, in situations where somebody is incapacitated, where somebody has trusted the management and a more complete, uh, authority to a, to a uh, attorney. In fact, I get to the fact that this is a rational basis review. If you take up the constitutional issue, it's not an intermediate scrutiny. And so you don't need a perfect uniformity. Uh, there, I I think that would, that would satisfy. There's no other questions. I will seed the balance of my time. Thank you, counsel. Thank you. Okay, submitted. Thank you.