2004-552, PATRICK J. LORENZ & a. v. NEW HAMPSHIRE ADMINISTRATIVE OFFICE OF THE COURTS & a.

job performance or misconduct. The superior court rejected the plaintiffs’ terminating their employment except for just cause based upon poor individual the C ourts and the New Hampshire Supreme Court, be equitably estopped from determination that the defendants, the New Hampshire Administrative Office of Superior Court, brought this petition for declaratory judgment seeking a The plaintiffs, judicial branch employees working for the New Hampshire

declaratory judgment. We affirm the result, alb eit on different grounds. appeal an order of the Superior Court (Hollman, J.) dismissing their petition for HORTON, J., retired, specially assigned under RSA 490:3. The plaintiffs

br ief, and Ms. Lombardi orally), for the defendants. attorney general, and Laura E. B. Lombardi, assistant attorney general, on the Kelly A. Ayotte, attorney general (Orville B. Fitch, II, senior assistant

L. Nixon & a. on the brief, and Mr. Nixon orally), for the plaintiffs. Nixon, Raiche, Manning, Vogelman & Leach, P.A., of Manchester (David

NEW HAMPSHIRE ADMINI STRA TIVE OFFICE OF THE C OURTS & a.

No. 2004 - 552 Hillsborough - north ern judicial district

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@c ourts.state.nh.us. Opinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Nobl e Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as

be permitted to proceed. We disagree. plaintiffs’ employment . . . would breach the promises made to [them],” should instant action, “which seeks only a declaration that termination of the prohibition of declaratory judgment actions against the State and that the enacting RSA 491:8 (1997). In addition, the plaintiffs argue that there is no The plaintiffs argue that the State waived its immunity from this suit by

Services v. Estate of Raduazo, Deceased, 539 U.S. 94 p. 2 2 (2003). omitted), cert. denied sub nom. New Hampshire Dep’t of Health and Human every citizen.” In re Estate of Raduazo, 148 N.H. 687, 692 (2002) (quotation immunity, would be disrupted if the state could be sued at the instance of need for the orderly administration of government, which, in the absence of the public against profligate encroachment on the public treasur y, and the The doctrine “serves two general public policy considerations: the protection of shall be conducted.” Sousa, 115 N.H. at 344 (quotation and ellipsis omitted). conditions on which it consents to be sued, and the manner in which the suit against the State unless the legislature has “prescribe[d] the terms and New Hampshire courts lack subject matter jurisdiction to hear an action

applied in New Hampshire.” this case “are included within the scope of the sovereign immunity doctrine as in the acts of our legislature”). The plaintiffs concede that the defendants in N.H. at 566 (“[o]ur decisions have found express or implied consent to suit only Dougherty, 1 p. 2 26 N.H. 294, 298 (1985) (quotation omitted); see LaRoche, 134 the state,” except where a statute might provide an exception. Tilton v. in 1978 of RSA chapter 99 - D, which adopted sovereign immunity “as the law of Sovereign immunity rested on a common law basis until the enactment

which must be affirmatively ple d.” Id. estoppel.” LaRoche, 134 N.H. at 566 (quotation omitted). “It is not a defense a jurisdictional question not to be waived by conduct or undermined by its co nsent. Sousa v. State, 115 N.H. 340, 34 p. 2 2 (1975). “Sovereign immunity is In New Hampshire, the State is immune from suit in its courts without

jurisdiction. See LaRoche, Adm’r v. Doe, 134 N.H. 56 p. 2 2, 566 (1991). neither the superior court nor this court is vested with subject matter hold that they are barred by sovereign immunity. Pursuant to that immunity, On appeal, we do not reach the merits of the plaintiffs’ claims because we

supplemental briefing on the issue of sovereign immunity. dismissed by the trial court. Following oral argument, we requested briefing and oral argument on the two issues upon which the case was which relief may be granted. The plaintiffs appealed and this court ordered employment and, further, dismissed the action for failure to state a claim upon claim for specific performance of an alleged oral contract for continued p. 3 3

bringing this petition. specific legislative consent, they are barred by sovereign immunity from constitutionality of the actions taken by the defendants. In the absence of N.H. 590, 59 p. 3 3 (1999). The plaintiffs here, however, do not challenge the relief.” Claremont School Dist. v. Governor (Costs and Attorney’s Fees), 144 State are unconstitutional, “the court ha[s] jurisdiction to grant equitable where the plaintiffs seek a declaratory judgment that actions taken by the Conway v. Water Resources Board, 89 N.H. 346, 348 (1938). Accordingly,

proceeding to which the State is a party. the void legislation into ope ration and enforcing it, it is not a brought to restrain those representing the State from carrying action has been taken by the State, and hence when suit is follows that if the legislature has not acted under authority, no the law is void and h ence that no law has been enacted. It When a law is challenged as unconstitutional, the claim is that

government or its branches.” Grinnell v. State, 121 N.H. 82 p. 3 3, 825 (1981). construed to permit challenges to the constitutionality of actions by our The declaratory judgment statute, RSA 491:22 (19 97), “has long been

declaratory judgment action against the State. The case does not support the plaintiffs’ position that any citizen may file a w hen the State itself asserts a claim over another’s property. See id. at 692. 148 N.H. at 688. As this court recognized, sovereign immunity does not apply jurisdiction by entering a claim in probate court over certain funds. Raduazo, Raduazo as “[d]irectly on point.” In Raduazo, however, the State invited declaratory judgment, it should be allowed to proceed. The plaintiffs cite We also disagree with the plaintiffs that because this action is one for

immunity established by RSA 491:8. contract and, therefore, the case does not fall within the limited waiver of however, have not brought a suit seeking money damage s for breach of is by way of an action for damages for breach of contract.” The plaintiffs, As the trial court recognized in this case, “[t]he appropriate remedy . . .

damages.” Id. interpretation which limits the consent given to actions for the recovery of no reference to redress in equity and therefore requires a fortiori an contract. Wiseman v. State, 98 N.H. p. 3 393, 397 (1953). “[RSA p. 4 491:8] contains interprete d to limit relief to suits seeking money damages for breach of implied contract with the state.” RSA 491:8. This statute, however, has been judgment against the state of New Hampshire founded upon any express or Jurisdiction has been conferred upon the superior court “to enter 4

p. 4 491:8 limits relief to suits seeking money damage s for breach of contract and immunity from the present suit by enacting RSA 491:8 (1997), saying that RSA The majority rejects the plaintiffs’ argument that the State waived its

conduct discovery within a reasonable time period to be set by the trial court. remand the case to the trial court with an order to permit the plaintiffs to the present circumstances bec ause of a July 28, 200 p. 4 4 trial court order; and defendants’ April 21, 2005 notice of employment termination are not effective in rule that the supreme court’s April 8, 2005 administrative order and the wit hdraw the majority’s September 7, 2005 order denying that second motion; court administrative order laying off all court reporters/stenographers; termination efforts, a motion that sought to enjoin the April 8, 2005 supreme motion for restraining order and/or extended/further stay of execution of career assigned under RSA 490:3, dissenting. We would grant th e plaintiffs’ second PAPPAGIANIS and DUNN, J J., retired superior court justices, specially

superior court justices, specially assigned under RSA p. 4 490:3, dissented. assigned under R SA 490:3, concurred; PAPPAGIANIS and DUNN, JJ., retired TEMPLE and DICKSON, JJ., retired superior court justices, specially

N.H. 511 (1981). RSA p. 4 491:8 as interpreted in Morgenroth & Assoc's, Inc. v. Town of Tilton, 121 herein. This decision does not b ar a future action for damages consistent with initio. The order of the trial court is vacated, except as specifically approved this action is barred by sovereign immunity. The petition is dismissed ab not consented to be sued in equity for the claims presented by the plaintiffs, not challenge the constitutionality of the defendants’ actions and the State has 491:8, the plaintiffs have not brought such an action. Because the plaintiffs do Although a contract action for damages is expressly allowed by RSA

or injunctive relief,” or, may we add, by declaratory judgment. life. . . . [S]uch a promise is not enforceable in equity by specific performance they are entitled to specific performance of promised employment for their suit in equity . . . [they] are effectively proceeding upon the theory that same. As the trial court stated, “[R]egardless of how the petitioners have styled to one for declaratory judgment, the requested relief remained essentially the Although the plainti ffs amended their original petition for protective injunction by the New Hampshire Supreme Court authorizing the plaintiffs’ layoffs. eliminating their employment and seek to void an administrative order issued affirmatively seek to prevent the defendants from firing, laying off, or declaration of their legal rights to continued employment, th e plaintiffs Furthermore, although the plaintiffs assert that they are only seeking a p. 5 5

had a cause of action for damages for breach of contract. immunity, the defendants, in several filings, expressly stated that the plaintiffs breach of contract. Until the majority raised the question of soverei gn dismiss that the plaintiffs had a cause of action for damages because of The trial court expressly stated in its decision granting the motion to

Practice, Civil Practice and Procedure § 36.02, at 124 (1998). accordingly given a liberal interpretation. p. 5 5 R. Wiebusch, New Hampshire identification and resolution of disputes before they cause harm and is A purpose of the declaration of judgment act is to encourage

rights . . . .” Id. consequence, declaratory relief may be sought prior to an actual invasion o f assertion of rights.” Beaudoin v. State, 113 N.H. p. 5 559, 562 (1973). “As a threatened wrongs, but also uncertainty and misunderstandings in the “[The declaratory judgment act] is designed to prevent not only

Plaintiffs’ Brief at 17.

breach of contract. their employment, and professional careers, it would be a the defendants were to continue to take steps to terminate declaration that they have such a cause of action; and that if contract and equitable estoppel. At this point they seek only a The plaintiffs’ cause of action is based upon principles of

statute can be used solely for that purpose is without merit. const itutionality of governmental action also inexplicably means that the declaratory judgment statute, RSA 491:22 (1997), is used to challenge the declaratory judgment. The majority’s rationale that cases holding that the are therefore “barred by sovereign immunity from bringing this petition” for not challenge the constitutionality of the actions taken by the defendants,” and branches.” The majority then concludes that “[t]he plaintiffs here, however, do to permit challenges to the constitutionality of actions by our government or its that the declaratory judgment statute, R SA 491:22, “has long been construed Quoting Grinnell v. State, 121 N.H. 823, 82 p. 5 5 (1981), the majority states

Brief at 3. their rights, if necessary, pursuant to RSA 491:8.” Plaintiffs’ Supplemental judgment] ruling in favor of the plaintiffs, they would be entitled to enforce equitable estoppel or pursuant to RSA 491:8. “In the event of a [declaratory breach promises made to them, entitling them to pursue their rights by of t - stated position of the plaintiffs that termination of their employment would makes no reference to redress in equity. The majority opinion overlooks the p. 6 6

Plaintiffs’ Brief at 35. On July 28, 2004, the trial court ruled that, “If the on the Petitioner’s Amended Petition for Declaratory Judgment.” Appendix to pendency of this matter, . . . including any appeal from the Court’s final order termination “except for misconduct and good cause shown . . . during the On July 7, 2004, the plaintiffs moved for stay of execution of employment

Plaintiffs’ Brief at 24. witnesses. The plaintiffs complained about being denied discovery. See ruling on the motion to dismiss before the plaintiffs deposed prospective dism iss on June 28, 2004, twenty - three days short of the ninety days, thereby would have been July 21, 2004. But the trial court granted the motion to The ninetieth day from the date of the court order concerning discovery

days’ notice of their intention to terminate the plaintiffs’ employment. agreed at the hearing that the defendants wo uld be required to give ninety Execution of Career Termination Efforts by Defendants at 13 - 14. The parties Second Motion for Restraining Order and/or Extended/Further Stay of ninety days to respond to the motion to dismiss. See Defendants’ Objection to The trial court rejected the defendants’ positions, ruling that the plaintiffs had the motion to dismiss should the plaintiffs have the right to conduct discovery. d efendants’ motion to dismiss within ten days and that only if the court denied objected, saying that the plaintiffs should be required to respond to the dismiss by making the appropriate factual statements. The defendants Justice John Broderick, so that he could respond to the defendants’ motion to Joseph Nadeau and Joseph D. DiClerico, and perhaps Supreme Court Chief trial court that he may need to depose former Superior Court Chief Justices At an April 22, 2004 hearing, the plaintiffs’ lead counsel informed the

intention of the parties to continue the performance in question. Id. at 4. (1981). Contracts implied in law are quasi - contracts, lacking an apparent of dealing or course of performance. Restatement (Second) of Contracts § 4 at 3 conduct, silence or by implication from the circumstances, including a course A contract implied in fact is based on a promise manifested in language,

contract in law, not an implied contract in fact. without seeking other employment to ensure their livelihood, was an implied as moder n a condition as possible, but also to continue in their employment only to spend considerable amounts of money to maintain their equipment in was not threatened, that their reliance on those assurances inducing them not and supreme court justices assuring court reporters that their employment fact. The defendants argue that written and oral assuranc es by superior court RSA 491:8 provided for breach of contract claims only for contracts implied in contract alleged by the plaintiffs in this case was one implied in law, whereas plaintiffs had the right to damages for breach of contract, asserting that the Given the issue of sovereign immunity, the defendants denied that the p. 7 7

Plaintiffs’ Objection to Motion to Dismiss at 4 - 6.

HZ: Yeah.

LH: That’s why my suggestion that you g o

HZ: A question of what the order is. It

LH: Exactly.

Judicial Branch) While the suit is still in place. We’d General Counsel, NH HZ (Howard Zibel, Esq.

LH (Lorri Hayes, Esq.): [T]here is an order that says you can’t

2004 order: Bargaining Session referring to the controlling effect of the trial court’s July 28, in the agreement. The following is an excerpt from the December 9, 2004 employment. The defendants stopped trying to insert language to the contrary their appeal to the suprem e court or to waive any right respecting their time. In negotiating the agreement, the plaintiffs refused to agree to terminate effectiveness of the layoff order or the notice of employment termination at this The collective bargaining agreement does not authorize the immediate

mention the trial court’s order of July 28, 2004. efforts was “unnecessary” and denied the motion. The majority did not motion for a restraining order and a stay of execution of career termination 2005, the majority of th is court ruled that acting on the plaintiffs’ second Employment Termination dated April 21, 2005. By order dated September p. 7 7, employment termination pending appeal, the defendants issued a Notice of court had decided the case. Despite this trial court order staying execution of The ninety - day layoff order, if any, was to be issued after the supr eme

Appendix to Plaintiffs’ Brief at 3 p. 8 8. The plaintiffs appealed as prescribed by law. of execution of employment termination will be considered as granted.” to dismiss within the time prescribed by law, then th e plaintiffs’ motion for stay plaintiffs exercise their right to appeal the court’s order on defendants’ motion 8

and was assured that “no such decisions have been made.” Id. at 49. reporters. He said he had checked with the Chief Justice of the Supreme Court decisions or establish ed any timetable” regarding replacement of court not be interpreted as meaning that the Supreme Court has made any firm court reporters were going to be terminated on or before June 30, 2005 “should Counsel Howard Zibel to a lawyer for the State Employees Association that the reported to the court reporters that remarks by Judicial Branch Ge neral In a February 27, 2004 e - mail, Superior Court Chief Justice Robert Lynn

Id. (quotation and emphasis omitted). reassess the need for stenographers in the New Hampshire Judicial Branch.” at 5 (quotation omitted; emphasis added). “[T]he Judicial Branch expects t o court monitor positions as court reporters resign or retire from office. . . .” Id. standing plan to eliminate court reporters’ positions and replace them with of the judicial branch, stated that: “[T]he Judicial Branch h as in place a long - In November 2003, the Office of Legislative Budget Assistant, in its audit

the supreme court. whether they considered their reassurances to be a reflection of the policy of their reassurances to be their right to give as superior court chief justices, or resolution of the question whether the superior court chief justices considered If the plaintiffs had conducted discovery, there would have been a

40 - 42, 46 (emphasis added). to make the decisions to hire Court Reporters.” Appendix to Plain tiffs’ Brief at leans to the monitors but have left it up to the Superior Court, within reason, Justice Nadeau’s statement that “the Supreme Court for budgetary reasons August 31, 1994 “Minutes of Justices/Cour t Reporters Meeting” reporting Chief jeopardy because of replacement by alternative recording methods”; and an Justice Dunfey’s position that the jobs of the court reporters “would not be in monitor”; a Ja nuary 21, 1994 letter from Chief Justice Nadeau citing Chief the Superior Court will lose his or her job as a result of being replaced by a continually assured us that no Court Reporter who is presently working with court reporters from Richard Dore reporting that Chief Justice DiClerico “has committed to retaining all current stenographers”; a March 11, 1992 memo to 19 p. 8 85 memo from Chief Justice Dunfey that “the members of the Court are Written reassurances to court reporters are to be found in a June 24,

not have such authority, and th at only the supreme court had that authority. whereas the defendants argued that the chief justices of the superior court did jobs were secure and that they would not be replaced by electronic devices, DiCleric o) had the authority to assure them, and did assure them, that their justices of the superior court (Richard Dunfey, Joseph Nadeau, Joseph In filing after filing, the plaintiffs argued that at least three former chief p. 9 9

off the plaintiffs had been made in October 2003. on J une 30, 2005.” Id. However, the record supports that the decision to lay throughout and be completed during the current biennial budget cycle ending them with court monitors. Id. at 52. “It is anticipated that layoffs will occur “reluctantly decided” to accelerate the phase - out of court reporters and replace In its March 12, 2004 Administrative Order 2004 - 02, the s upreme court