2005-176, JOHN J. GOSSELIN v. NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS

times from May 2003 to September 2003. The DOC’s Policy and Procedure

case. We affirm.

Hampshire State Prison, and was charged with disciplinary infractions seven The record supports the following. Gosselin is an inmate in the New

New Hampshire Department of Corrections (DOC) is the respondent in this of the Superior Court (Lewis, J.) denying his petition for writ of certiorari. The BRODERICK, C.J. The petitioner, John J. Gosselin, appeals the decision

for the respondent. memorandum of law, and Andrew Livernois, assistant attorney general, orally), Kelly A. Ayotte, attorney general (Dianne H. Martin, attorney, on the

appellate defender, of Concord, orally, for the petitioner. John J. Gosselin, by brief, pro se, and Theodore M. Lothstein, assistant 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. No. 2005-176 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 not be considered rules subject to the provisions of RSA 541-A.” p. 2 the APA and that Gosselin’s appeal rights ended with the prison warden. for writ of certiorari. This appeal followed.

humane treatment of inmates,” all by means of actions that “shall (1997 & Supp. 2005). The DOC responded that PPD 5.25 is not governed by operation of the state prison . . . including provisions for the not entitled to any of the relief he sought, and accordingly denied his petition procedures” to deal with, among other things, “procedures for the

and to enforce inmate responsibility in that regard.

to the requirements of a full adjudicative hearing under RSA 541-A:31 to :36 Procedures Act (APA), and that hearings conducted under PPD 5.25 are subject In reaching this conclusion, the superior court determined that Gosselin was inmates,” and to adopt “reasonable internal practices and should have been promulgated under RSA chapter 541-A, the Administrative

to deal with failures of state prison inmates to properly behave, outside the confines [of] the APA, to enact and maintain PPD 5.25 Legislature has granted broad authority to the DOC commissioner, prison time or lose good time credits for the violations. See RSA 21-H:14 and 8, III. The Court thus concludes that the

written standards regarding the behavior and responsibilities of superior court, and the DOC moved to dismiss. Gosselin argued that PPD 5.25 maintain PPD 5.25 derives from his/her power “to establish [T]he DOC Commissioner’s general authority to promulgate and

statutes governing the DOC, the court explained: The superior court agreed with the DOC. After examining the APA and was given various hours of extra duty. Gosselin did not receive additional and was either sanctioned with the loss of some privilege, such as canteen, or charges, and not guilty of one. Gosselin was “written-up” for the six offenses

notice of and received a hearing for each of the charges against him. found no procedural error. Gosselin then filed a writ of certiorari in the Gosselin appealed at least some of the decisions, but the prison warden

reviewing the evidence, the hearings officer found Gosselin guilty of six of the At each of the hearings, Gosselin entered pleas of not guilty. After

allegations. In accordance with those procedures, Gosselin was given written Directive 5.25 (PPD 5.25) sets forth the procedures for resolving such p. 3 A:21, I(j). 36:8. This exemption remains in effect, and is presently codified at RSA 541-

exemptions were added to that list.

one for rules “relative to credit for good conduct of prisoners.” Laws 1982, members of the general public or personnel in other agencies.

the Pease development authority”). Among these additional exemptions was requirement binding on persons outside the agency, whether

statutes, from the definition of “rule” in the APA, and accordingly from the

rulings, and forms,

“relative to bridge weight limits”); Laws 1990, 161:9 (excluding rules “relative to disagree. and the required hearings are not governed by the strictures of the APA. We (b) prescribe or interpret an agency policy, procedure or practice E.g., Laws 1979, 94:1 (excluding rules make specific a statute enforced or administered by such agency or applicability adopted by an agency to (a) implement, interpret, or “Exemptions” that excluded certain rules and regulations, required by other unsustainable exercise of discretion. The APA was subsequently amended to include a section entitled

RSA 541-A:1, XV. This definition excludes certain memoranda, pamphlets,

that the trial court erred as a matter of law when it determined that PPD 5.25

each regulation, standard or other statement of general

of the law, or has acted arbitrarily, unreasonably, capriciously, or with an Supp. 2005). The “rules” to which the APA applies include disputes arising under those rules. See generally RSA ch. 541-A (1997 & promulgate rules and regulations, as well as the procedures that govern The APA establishes the procedures by which administrative agencies waived.

unsustainable exercise of discretion standard). On appeal, Gosselin argues 147 N.H. 1, 4 (2001); State v. Lambert, 147 N.H. 295, 296 (2001) (explaining

agency has acted illegally with respect to jurisdiction, authority or observance The test to determine whether to grant a writ of certiorari is whether the

the petition was untimely, we consider the DOC’s argument on this issue record that this argument was raised below. Accordingly, even assuming that petition for writ of certiorari was untimely. We can find no indication in the In its memorandum of law on appeal, the DOC argues that Gosselin’s if all the offenses are B and C offenses.”

p. 4 cases may be referred by the Administrator of Security to the major board even

listed punishments, including loss of good time. Also, “multiple or complicated offenses in “minor” hearings, each infraction type could result in any of the Although, generally, A offenses are adjudicated in “major” hearings and B or C

or C offenses, with A offenses being the most serious and C offenses the least.

hours, and suspension of privilege days. Infractions are divided into type A, B, punishment include loss of good time, disciplinary segregation days, extra duty level of punishment that may be levied upon the inmate. The kinds of 4

amended as described above. kinds of infractions an inmate may be charged with, as well as the type and recodification of the list originally established in 1974 and subsequently

rulemaking and adjudicative hearing strictures of the APA. prisoners.”

within the only applicable exemption that that it no longer does so. The issue before us, then, is whether PPD 5.25 falls following the stricter requirements.” RSA 541-A:41. between this chapter and prior or existing statutes shall be resolved by and appeals, except as specifically exempted by this chapter. Conflicts

INFRACTIONS” that appears to be “Attachment 2” to PPD 5.25. It describes the exemptions not expressly contained in RSA 541-A:21, which is the Included in the record is a document entitled “DISCIPLINARY RULE

exempted the required practices, procedures, and standards from both the RSA 541-A:21, I(j), which exempts rules “relative to credit for good conduct of that when these sections in RSA chapter 21-H were enacted in 1983, they is contained in the APA — namely, subject to the provisions of RSA 541-A.” RSA 21-H:8, III, :14. The DOC argues DOC’s policies, procedures, and standards from the APA prior to 1994, we hold Accordingly, to the extent that RSA chapter 21-H may have exempted the

stated, “This chapter shall govern all agency rulemaking procedures, hearings, Cf. Support Enforcement Officers, 147 N.H. at 5.

must prevail.” We disagree. This statute had the effect of repealing all implementation in DOC policy 5.25 . . . are the ‘stricter requirements’ and argues, “The commissioner’s existing statutory authority, and its The DOC, after referencing this statute in its memorandum on appeal,

such practices, procedures, and standards “shall not be considered rules

repealed and recodified the APA. As part of the recodification, the new APA However, even assuming the DOC is correct, in 1994 the legislature

responsibilities of inmates.” RSA 21-H:8, III, :14 (2000). It further states that and its divisions,” as well as “written standards regarding the behavior and procedures . . . as may be necessary to carry out the duties of the department DOC commissioner to adopt “such reasonable internal practices and Additionally, RSA chapter 21-H was enacted in 1983. It requires the p. 5 5

produced such a result.

arguments on appeal. of certiorari. Due to our resolution of this issue, we need not address the other the trial court, we nonetheless affirm its dismissal of Gosselin’s petition for writ

depending upon the circumstances, the rules governing his actions could have and where even a single violation may result in the loss of good time credits, However, as the same set of rules governs both major and minor infractions,

the APA. Although we come to this conclusion on different grounds than did A:22, IV(b) (1996).

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

offense. We recognize that Gosselin did not lose any good time credits. the earlier violation and its date from the offender’s record. if the person writing the report or investigating the report identifies

therefore exempt from the rulemaking and adjudicative hearing strictures of such [good time] credits, at the discretion of the commissioner.” RSA 6 p. 5 51- Accordingly, we hold that PPD 5.25 falls under RSA 541-A:21, I(j) and is

Gosselin was charged, one of those in the record clearly indicates a type B become an A offense. Repeat offenses may be increased in severity While we do not have documentation for all of the infractions with which

his confinement shall subject the prisoner to the loss of all or any portion of insubordination, or persistent refusal to conform to prison regulations during time credits is also allowed by the statutes. “Any serious act of misconduct or The policy of allowing multiple minor infractions to result in the loss of good

become a B offense. A repeated B offense within 90 days may that a specific C type offense repeated within a 90 day period may Repeat offenses increase the severity of B and C offenses so

Attachment 2 further explains: