Soper receives LLM from UNH

Matthew Soper was presented an LL.M. in intellectual property law from University of New Hampshire School of Law in a May ceremony.

Boies, Soper, and Olson

Noted attorneys Ted Olson and David Boies, who just argued the same-sex marriage case before the U.S. Supreme Court, addressed the graduating class.

While at UNH School of Law, Soper participated in the Intellectual Property and Transaction Clinic and the Teen Court Program.

Of his experience at UNH School of Law he says, "I polished my legal skills and gained invaluable practical experience which I will be able to bring back to Colorado. Additionally, I made many new friends from around the world. It was great fun being in New Hampshire during a presidential election and meeting who's who in U.S. politics."

Matt Soper, LLM

Soper stepped down from his position as Orchard City trustee to attend the University of New Hampshire School of Law. This degree qualifies him to sit for the bar exam, something he was unable to do without an American law degree.

A 2003 graduate of Delta High School, Soper earned his LL.M. in public international law, with a focus on maritime piracy law, and LL.B. in law at the University of Edinburgh in Scotland, Great Britain, in 2009 and 2011 respectively.

Soper earned a bachelor's degree in political science and marketing from Mesa State College in 2007. He is the son of Betty and Charles Soper of Delta.

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'Soper receives degree from UNH'. Delta County Independent. 29 May 2013 <http://deltacountyindependent.com/index.php/neighbors/milestones/people-in-the-news/36-milestones/people-in-the-news/6151-soper-receives-degree-from-unh>

Summertime running: avoiding risks associated with heat & humidity

As hot sunny days become the norm in New Hampshire again, it becomes easy to forget the health risks associated with outside cardiovascular activity.

Our bodies are finely engineered machines that during summertime exercise strive to shed unwanted heat by increasing blood flow to the skin and by sweating. During hot, humid days, perspiration is not an effective means of cooling the body, as saturated air does not evaporate efficiently and at the speed required by runners.

In an effort to stay fit, I take a 10 km run per day. Wearing light coloured clothes and carrying a 750 mL water bottle I felt well prepared for a mid-day run on Sunday. With temperatures in the mid-90s and humidity climbing do to encroaching thunderstorms, I kept pushing on. Having finished my bottle of water and being without spare change, I was desperate for some hydration. I felt the effects of a heat-related illness. As I passed by the Yellow Sub takeout, I asked the owner if I could refill my bottle of water. He very graciously helped. I am very thankful for the Yellow Sub in west Concord.

With summer here it is critical to avoid heat strokes and cramps, as they could potentially be deadly. Run with plenty of water, especially a electrolyte-fortified sports drink, make a habit of drinking copious amounts of water, along with maintaining a good electrolyte balance. If you are just getting back into shape, acclimate to the conditions, by working out in the mornings or evenings.

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M. Soper, 'Beware of the risks that come with hot weather'. Concord Monitor. 9 June 2013 <http://www.concordmonitor.com/community/town-by-town/concord/6935582-95/letter-beware-of-the-risks-that-come-with-hot-weather>.

What are the odds: High School friends reunited on same flight*

Bill Helmsing and Matt Soper randomly met on same flight a decade after graduating from high school together

Delta High School friends reunited on same flight from Boston to Denver. Captain Bill Helmsing, with the 1st BDE 10th Mountain Division, and Matt Soper, who is studying Intellectual Property law at the University of New Hampshire, had not seen each other for 10 years and were surprised to be flying home for the holidays together. 

Helmsing, a West Point graduate, is stationed in Ft. Drum, New York and is about to deploy to the Regional Command East in Afghanistan as a member of a Security Force Advise and Assist Team. 

Soper is an alumnus of Colorado Mesa University and the University of Edinburgh’s Faculty of Law and plans on sitting the New York Bar Exam in July 2013. Helmsing and Soper graduated from Delta High School in 2003.
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*'You Saw It', Grand Junction Daily Sentinel 28 February 2013: 8B

Farrelly v. Concord: never date the police chief's daughter

The case of Farrelly v. City of Concord is a civil action before the United States District Court for the District of New Hampshire. On Tuesday, 27 November 2012 at 11:00 AM I was privy to the oral arguments before the Honorable Judge Landya McCafferty concerning a duel motion to reconsider.  The motion by defendants, the City of Concord, was to suspend an order regarding NH RSA 507-B (municipality immunity question), pending reconsideration and appellate review if necessary. The plaintiff’s motion was to have the court reconsider claims IV (malicious prosecution) and VIII (negligence), which earlier had been dismissed by a motion. The malodorous facts of Farrelly are lucid in contrast to the procedural quandary before the parties.  This essay will commence with a presentation of the facts, followed by a discussion of the motions and in-court observations of the actors, and conclude with a few personal remarks about courtroom observation and the attorney’s jibes at each other.

            The story begins when Mr Farrelly started dating Ms Corliss, who is the daughter of a 30-year veteran of the City of Concord, New Hampshire Police Department.[1] At one point, Mr Farrelly moved in with Ms Corliss and her daughter.[2] After the relationship dissolved, Mr Farrelly sent a total of three emails to Ms Corliss in February 2009, expressing his disappointment in how she treated him and her daughter.[3] The emails allegedly contained an expletive.[4] Ms Corliss responded by filing a complaint with the Concord Police, alleging harassment and inappropriate language.[5] On 21 February 2009, two police officers, one being Officer Pichler, arrived at Mr Farrelly’s apartment inquiring about the emails.[6] After several questions, Mr Farrelly admitted to sending the emails.[7] Officer Pichler then made a warrantless arrest of Mr Farrelly “because he thought he was permitted to do so by RSA 594:10, I(b), based on his belief that Farrelly had committed domestic abuse, as defined in RSA 173-B:1.”[8] Mr Farrelly informed officers of a shoulder injury.[9] Police officers negligently handled Mr Farrelly resulting in severe damage to the shoulder, hip, wrist, and arm.[10] “The charges against Farrelly were dropped [the day] before trial, due to the unconstitutionality of RSA 644:4, I(f).”[11] After the charges were dropped, the Concord District Court ordered Mr Farrelly’s arrest to be annulled and voided from the record.[12]

On 16 December 2010 Mr Farrelly launched this civil action against the City of Concord and the two police officers stating six causes of action in his complaint.[13] The complaint was later amended to add two additional causes of action.[14] The reason the United States District Court for the District of New Hampshire was able to hear the case was because one of the causes of action raised a question of federal law and jurisdiction was asserted on account of the parties residing in the district. The causes of action included: violation of due process; violation of 1st Amendment rights of speech; violation of 4th Amendment rights against unreasonable search and seizure; malicious prosecution; false imprisonment; violation of New Hampshire’s Constitution; failure to supervise; and negligence.[15]

In September 2012, Judge McCafferty ruled on a motion for summary judgment and in an 86 page opinion partially granted defendant’s motion, partially denied, and granted plaintiff’s motion to amend the complaint.[16] False imprisonment was the sole cause of action to survive summary judgment.[17] The plaintiffs were permitted to bring an amendment and try again.[18]

The day I observed the oral arguments for a duel motions to reconsidering hearing, the defense’s motion to reconsider and have the final claim dismissed by summary judgment. That claim is false imprisonment, which is a state law claim under common law intentional tort. The plaintiff’s motion to reconsider was for the court to allow two previously dismissed claims of malicious prosecution and negligence to proceed to trial. The oral arguments lasted about one hour and 40 minutes. The plaintiff was represented by Jon Meyer and the defendants were represented by Charles Bauer. Only the attorneys were present before the court.

            Mr Bauer began first. He reminded Judge McCafferty of her 86 page summary decision on the relevant issues of law in question. The defense said a majority of the complaints were dismissed under 42 U.S.C. § 1983. The defense reminded the court that malicious prosecution was one of the claims dismissed by the court. The defense continued by stating that of the original 8 claims presented, only one remains in question – the false imprisonment claim – which is a New Hampshire state law claim.  The defense then stated that the motion for reconsideration hearing was an opportunity for the court to re-hear the reasons for dismissing the false imprisonment claim as a matter of law. Mr Bauer then proceeded to lecture Judge McCafferty on how she eroded in not dismissing the false imprisonment claim and that she eroded in entertaining the plaintiff’s motion to reconsider these formerly dismissed claims of malicious prosecution and negligence.

            The basis for dismissing the false imprisonment claim was N.H. Rev. Stat. §507-B:2, which concerns Liability for Negligence. RSA 507-B:2 sets forth circumstances under which a governmental unit may be held liable for negligence.[19] The defense states that these circumstances are limited only to pertinences (eg- sidewalks, buildings, etc.) and motor vehicles (eg- cars, trucks, planes). The defense further argued that 13 out of 14 courts have not allowed a municipality to be held liable for an intentional tort, such as false imprisonment, and the one court which did allow the action to proceed involved a retired judge. The plaintiffs argue that RSA 507-B:2 does not state or imply that a governmental unit has no liability for intentional torts. The plaintiffs explained that if the legislature had wanted to exclude intentional torts, then they would have been more specific.

At this point in the oral arguments, Judge McCafferty asked if the standard of measure was an objective or subjective one. The judge explained the question of municipal immunity rested on determining if the immunity is either official immunity[20] or qualified immunity[21]? Qualified immunity with an objective standard would preclude all intentional tort claims against municipalities. A subjective standard would favor the plaintiff’s case.

The plaintiff’s argued that the defendants cite no state case law to support its proposition of official immunity, and instead rely on the federal law of qualified privilege. Federal law, the plaintiff’s argue, is inapplicable, since it is based upon decisions of the U.S. Supreme Court establishing an objective standard for qualified immunity which has no counterpart in common law privileges. In 1985, the New Hampshire Supreme Court made subjective reasonableness a constitutional requirement which would be equally applicable to official immunity.[22] Further, the plaintiffs state that official immunity does not bar an intentional torts action from proceeding to trial. The plaintiffs pointed out that no proof had been led by defendants as to why Mr Farrelly was arrested without a warrant on the basis of a statutory clause which had been declared unconstitutional three year earlier.

The Everitt v. Gen. Elec. Co., 156 N.H. 202 (2007) decision is considered precedential by both sides. The defendants argued that Everitt precludes official immunity from barring claims of intentional wrongdoing. The plaintiffs pointed out that Everitt explicitly states that municipalities are to be held to the same standard as corporations; and a corporation can be liable for an intentional tort.

Both the defendants and plaintiffs agreed that since the federal district court was acting under supplemental jurisdiction, that a certified question on the issue of immunity would be appropriate. Under the Erie Doctrine, federal courts which have questions of state and federal law should apply the substantive law of the state, in this case, New Hampshire, to the state law question(s). The Erie Doctrine requires the federal court to predict how a state court would decide the same question. A certified question on substantive law is not mandated, but if the federal court agrees and the New Hampshire Supreme Court accepts, then the highest court will be given the opportunity to rule on that question of law.

In conclusion, this was a very fascinating case to observe in-person, as had the legal counsel for the City of Concord not lectured the judge on how she eroded, there might have been much more of an opportunity to have the immunity question decided in defendants favor. When the defense counsel said that Judge McCafferty’s opinions were worthless as he would appeal to the First Circuit Court of Appeals and that court would then tell her what the law is. The counsel for the plaintiff had a funny zinger, as he made a sarcastic reference that he didn’t realize retired judge’s opinions carried less precedential weight. Judge McCafferty seemed quite keen to not make a judgment based on dicta. She wanted an actual citation for where the defense was claiming the Everett case created blanket immunity. After the hearing, the two attorneys were already discussing lunch plans and a settlement deal for other clients they represent. I found it amazing how they had just had a heated argument about a heavy question of law and then were capable of moving onto other subjects without fully collecting their papers.

---

[1] Complaint and Demand for Jury Trial at 2, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Dec. 16, 2010), ECF No. 1-3.

[2] Id.

[3] Id. at 3.

[4] Oral Arguments, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Nov. 27, 2012).

[5] Answer and Affirmative Defences at 3, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Jan. 24, 2011), ECF No. 6; see Farrelly, 2012 WL 4513888, at *3.

[6] Complaint and Demand for Jury Trial at 3, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Dec. 16, 2010).

[7] Amended Complaint and Demand for Jury Trial at 3, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Nov. 8, 2011), ECF No. 31-1.

[8] Farrelly v. City of Concord, No. 10–cv–583–LM, 2012 WL 4513888, at *9 (D. N.H. Oct. 2, 2012).

[9] Farrelly, 2012 WL 4513888, at *4.

[10] Order Denying Defendant’s Motion to Dismiss at 1, Farrelly (D. N.H. Sept. 12, 2011).

[11] Farrelly, 2012 WL 4513888, at *10.

[12] Order Denying Defendant’s Motion to Dismiss at 2, Farrelly (D. N.H. Sept. 12, 2011).

[13] Complaint and Demand for Jury Trial, Farrelly (D. N.H. Dec. 16, 2010), ECF No. 1-3.

[14] Amended Complaint and Demand for Jury Trial, Farrelly (D. N.H. Nov. 8, 2011), ECF No. 31-1.

[15] Amended Complaint and Demand for Jury Trial at 6-8, Farrelly (D. N.H. Nov. 8, 2011), ECF No. 31-1.

[16] Farrelly, 2012 WL 4513888, at *85-86.

[17] Id.

[18] Id.

[19] “A governmental unit may be held liable for damages in an action to recover for bodily injury, personal injury or property damage caused by its fault or by fault attributable to it, arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises; provided, however, that the liability of any governmental unit with respect to its sidewalks, streets, and highways shall be limited as provided in RSA 231 and the liability of any governmental unit with respect to publicly owned airport runways and taxiways shall be limited as set forth in RSA 422.”

[20] Doctrine of official immunity protects individual government officials or employees from personal liability for discretionary actions taken by them within the course of their employment or official duties. RSA 99-D:1. “Official immunity” shields public employees against lawsuits alleging common law torts, such as negligence.

[21] Doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which reasonable person would have known. “Qualified immunity” shields public employees against lawsuits alleging constitutional violations. This is also known as “good faith” immunity, meaning it does not protect against bad faith actors. See Black’s Law Dictionary.

[22] Opinion of the Justices, 126 N.H. 554, 564 (1985); see also City of Claremont v. Truell, 126 N.H. 30, 39 (1985) (New Hampshire Supreme Court held a statute should be interpreted so as to preserve its constitutionality).

2012 year-in-review: LL.B. to LL.M.

In the year since graduating from the University of Edinburgh much has happened in my life. I have gone from law student to campaign manager to youngest elected city council member of my home town to working for the leading NGO on maritime piracy to once again being a law student. In this time I have met and visited with the president, vice president, GOP challenger, a retired US Supreme Court justice, the highest judges from New Hampshire, Texas, and New York, along with visiting with Colorado's governor, New Hampshire's governor, Texas' governor, the junior US senator from South Dakota, and a former US senator from Pennsylvania, not to mention having lunch with a former governor of New Hampshire and a former US senator from Colorado. Life has also been challenging, I was present when my aunt Clara passed away and not long after that I received the letter saying I had been denied admittance to sit the New York bar. This resulted in me having to step down as trustee and pursue an LL.M. degree, which is one of the new requirements for sitting the bar. I also experienced the economic downturn, but applying to over 50 businesses and hearing no responses. Perseverance and no matter the odds, never give up, have become daily mantras. The following is a year in review:

27 November 2011 - graduated from University of Edinburgh with an LL.B. in Law

December 2011 - launched exploratory committee for a possible bid for the Colorado House of Representatives, Dist 61

January 2012 - began campaign manager for Bruce Hovde's re-election campaign for Delta County Commissioner, Dist 2

February 2012 - began campaign for Orchard City Board of Trustees

3 April 2012 - elected Orchard City's youngest Trustee

April - October 2012 I served on the Orchard City Board of Trustees. 

April 2012 - became campaign manager for Mark Roeber's Delta County Commissioner Campaign, Dist 3

May - August 2012 - maritime piracy legal researcher (intern) with Oceans Beyond Piracy, which is an NGO that provides research on the economic and human costs of piracy at sea, along with engaging stakeholders to find a governance based solution to countering piracy. Working included revising and enhancing counter piracy matrix, editing law reports, following pending criminal and tort cases, and providing information for diplomats, the military, and industry. 

September 2012 - begin LL.M. in Intellectual Property (IP) Law at the University of New Hampshire's School of Law (Franklin Pierce Center for Intellectually Property)

September 2012 - visited Portland, Maine; Kennybunkport, Maine; Boston, Massachusetts; Mount Washington, New Hampshire; the White Mountains of New Hampshire; Newport, Rhode Island

October 2012 - shook hands with President Obama in Portsmouth, NH; visited with Vice President Joe Biden in Concord, NH; talked constitutional law with form US Supreme Court Justice David Souter in Concord, NH; and gave words of encouragement to Mitt Romney in Manchester, NH.

October 2012 - travelled to New York City for the first time since I was 12 years old. Met up with my former Edinburgh flatmate and good friend, Fabio Pucci. We were flatmates for nearly 3 1/4 years. He was in NYC to present a paper at the Rockefeller. We went to the top of both the Rockefeller Center (Top of the Rock) and the Empire State Building. I stayed the first night in Harlem and the second in Times Square. Whilst walking in Central Park, I thought to myself Manhatten Island is crazy, fun, and looking at the buildings might injure my neck ;-) I also went to the cite of the World Trade Center attacks. I was disappointed that there were venders (including the National Commission) selling goods, profiting off of the dead of nearly 3,000. Fabio put things in perspective by saying the towers were about commerce and free enterprise, capitalism, and trade. "If there weren't venders selling goods and making money on the very site where so many died, then the terrorists would have won." 

October 2012 - sat the Multi State Professional Responsibility Exam (MPRE), this exam, along with the Bar Exam, is required to be admitted to practice law.

October 2012 - visit Montpelier, Vermont

October 2012 - elected as a "write-in" to the Board of Governors of the New Hampshire Student Bar Association 

November 2012 - hung out with the Supreme Court Chief Justices of New Hampshire, Texas, and New York; in addition to having lunch with former New Hampshire Governor Steve Merrill.