2005-120, APPEAL OF ANDREW J. KAPLAN

The petitioner, Andrew J. Kaplan, appeals a decision of the

the brief, for the New Hampshire Department of Employment Services. attorney general on the brief and orally) and Charles H. Bradley, of Concord, on Kelly A. Ayotte, attorney general (Wynn E. Arnold, senior assistant

Errors may be reported by E-mail at the following address: for the petitioner. errors in order that corrections may be made before the opinion goes to press. Vanderzanden and Jill A. DeMello on the brief, and Ms. Vanderzanden orally), Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Edwinna C.

(New Hampshire Department of Employment Security)

APPEAL OF ANDREW J. KAPLAN

No. 2005-120 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Department of Employment Security

___________________________

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

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 p. 2 22 as 2 unemployment contributions made by Kinderworks on his behalf.

meaning of RSA p. 2 282-A:32, I(e) and

of Kinderworks. Kaplan asserts that, unlike the claimant in

erroneous.

503.03 and our decision in

(3) his federal and State constitutional rights entitle him to the return of all the Equal Protection Clause of both the Federal and State Constitutions; and Kaplan was not eligible for benefits because he was self-employed within the corporation”; ( p. 2 2) RSA 282-A:32, I(e) and its accompanying regulations violate premiums that DES had collected from Kinderworks. The tribunal ruled that evidence presented.” minority stockholder and “did not control the corporation.” unemployment benefits; and (2) he was entitled to a refund of unemployment unauthorized, affected by an error of law, or clearly erroneous in view of all the Hickey, he was a tribunal failed to consider that he was not a majority or controlling shareholder evidence on questions of fact.” See RSA 282-A:67, V. Specifically, Kaplan contends that the denied Kaplan’s motion to reconsider. This appeal followed. argues that the tribunal’s conclusion that he was self-employed was clearly

Kinderworks, he was self-employed according to RSA p. 2 282-A:32, I(e), Rule The tribunal concluded that although Kaplan was an employee of

unemployment was clearly erroneous because he “did not control the Id. We address each argument in turn.

that: (1) he was an employee of Kinderworks and thus eligible for We will uphold the tribunal’s decision “unless its findings or conclusions are

will not substitute our judgment for its judgment as to the weight of the protection rights. The appellate board sustained the tribunal’s decision and “In reviewing a decision of the tribunal we are confined to the record and terminated operations on February p. 2 27, 2004.

On appeal, Kaplan argues that: (1) the tribunal’s decision to deny him

certifying officer denied his request. On appeal to the tribunal, Kaplan argued A:67, II (1999).

alleging in part that DES’ actions were confiscatory and violated his equal failed to satisfy its obligations and the lender foreclosed. Kinderworks request to reopen the case. Kaplan then appealed to the appellate board, 503.03 (Rule 503.03). Kaplan appealed to the commissioner who denied his

Kaplan subsequently applied to DES for unemployment benefits. A

withdrew financial support by calling in Kinderworks’ loans. Kinderworks By late p. 2 2003, Kinderworks had incurred substantial debt. Its lender criteria.

p. 3 rule where, as in this case, the petitioner satisfied at least three of the rule’s interest in the corporation. This fact, however, is not determinative under the not a majority shareholder in Kinderworks and, thus, did not have a controlling

conclusion that he was self-employed was clearly erroneous because he was

Kaplan does not challenge these findings, he argues that the tribunal’s

had an investment and was a stockholder, received a salary and benefits from Specifically, the tribunal found that Kaplan was “an officer of the corporation, delegated rights or authority to the individual; or family member either acceded to the decisions of the individual or

benefits because he met at least three of the criteria in Rule 503.03(a). 503.03(a). tribunal’s findings and conclusion that Kaplan was self-employed under Rule who had the express or implied right to control the business, and said

See Rule 503.03(a). Thus, the record provides ample support for the

The tribunal concluded that Kaplan was ineligible for unemployment manager, director, investor, stockholder or partner, who controlled or in isolation, but rather in the context of the entire statute.” Id. AlphaDirections, 152 N.H. 477, 482 (2005). “We do not read words or phrases meaning of the statutory language in determining legislative intent.” Appeal of In applying this statute and rule, “[w]e look to the plain and ordinary plans, retirement and similar advantages, and benefits;

officer or director. (6) The individual performed services not required to be done by an

family member of the same relationship who was either an officer,

three or more of the following criteria: (5) The individual had a spouse, parent, child, brother, sister, or step (4) The individual controlled or had the right to control the business;

bonuses, board, rent, housing, payment in kind, insurance, disability

beyond their control. include wages, capital gains, dividends, salaries, commissions,

order to create profits, which for purposes of this subparagraph shall (3) The individual formed the entity or became involved in the activity in (2) The individual had an investment or was a stockholder; in name and in fact; (1) The individual was a sole proprietor, partner, officer or director, both

have left his self-employment or closed his business based upon a showing of receiving benefits. Rule 503.03(a) provides that an individual is deemed to a person who has “left his self-employment or closed his business” from

to those whose entrepreneurial businesses fail because of circumstances New Hampshire’s unemployment compensation scheme denies benefits other employees.

p. 4 rational basis for treating officers, directors and shareholders differently from

inequitable” for the State to collect unemployment benefits from him.

course of subsequent proceedings before the appellate [board].”

compensation. Kaplan also asserts that the statute and regulations lack a to equal protection because it fails to match equality of burden with equality of Kaplan argues that the unemployment compensation scheme violates his right attorney’s statement to the tribunal that it was “improvident and probably 4

responds that his both timely raised below and preserved for our review.”

insofar as that record may have been clarified or the issues limited in the

Constitutions. U.S. CONST. amend. XIV § 1; N.H. CONST. pt. I, art. 12. claims. Moreover, Kaplan asserts that his claims were also preserved in his

appellate review because he did not raise them before the tribunal. Kaplan RSA 282-A:67, V (1999). “On appeal, we consider only issues that have been Pelleteri, 152 N.H. __, __, 887 A.2d 140, 143 (2005) (quotation omitted); see

We review decisions of the appeal tribunal “for errors of law, except

regulations violate the Equal Protection Clause of both the Federal and State violated his equal protection rights, adequately preserved his constitutional

pro se letter to the appellate board, alleging in part that DES

DES argues that Kaplan failed to preserve his constitutional claims for

prior holding). Accordingly, we decline his invitation.

503.03(a), they remain eligible for unemployment benefits. assertion, however, is insufficient to persuade us to overrule a prior decision. officers, directors, and shareholders do not meet two other criteria in Rule

Kaplan next contends that RSA 282-A:32, I(e) and its accompanying

(2003) (setting forth factors that guide our judgment when asked to overrule See Jacobs v. Director, N.H. Div. of Motor Vehicles, 149 N.H. 502, 504-05

protection to” those who are unemployed through no fault of their own. This least three discrete criteria, however, undercuts this argument. So long as unemployment compensation act’s purpose,” which “afford[s] some degree of language “left his self-employment” in that case “was not consistent with the asserts that we should reconsider Hickey because our interpretation of the unemployment benefits to those who leave their self-employment. Id. Kaplan declined to interpret the statute beyond its plain meaning, which denies A:32, I(e)] were “clear and unambiguous.” Hickey, 139 N.H. at 588. We thus Hickey, we held that the terms of RSA 282-A:32, I(c) [now codified at RSA 282- Finally, Kaplan requests that we revisit our decision in Hickey. In

receiving unemployment benefits. The requirement that an individual meet at 503.03(a) effectively precludes officers, directors and shareholders from Kaplan further contends that the tribunal’s literal application of Rule constitutional issues were not preserved for our review.

p. 5 raising an equal protection claim. We conclude, therefore, that the

Accordingly, Kaplan did not give the tribunal sufficient notice that he would be assertion that DES had thereby violated his right to equal protection. However, neither Kaplan nor his counsel linked these allegations to the

probably improvidently” collected unemployment premiums from him.

is entitled to all unemployment contributions made by Kinderworks on his employment or close his business within the meaning of RSA 282-A:32, I(e), he tribunal. Kaplan’s attorney stated to the tribunal that DES “inequitably and Finally, Kaplan urges us to rule that, even if he did leave his self-

at __, 887 A.2d at 144.

notice that they were raising constitutional claims.”

Kaplan failed to sufficiently articulate his constitutional claims before the equal protection.” relaxed for a pro se [litigant]”). Like the petitioners in Bosselait and Pelleteri, 100-01 (1999) (citing the general principle that “rules of preservation are not not excuse his failure to preserve his claims. See State v. Porter, 144 N.H. 96, final determination. Kaplan’s pro se status at the time he sent the letter does his claim fails because the letter was sent after the tribunal had reached its Kaplan’s argument that his pro se letter to the appellate board preserved

887 A.2d at 144. not preserved for review by this court. Pelleteri, 152 N.H. at __, “generalized assertions of unreasonableness” did not constitute “sufficient

express “the view that the statute was therefore invalid as working a denial of of his intention to raise a constitutional claim because the petitioner did not “was discriminatory against the aged” was not sufficient to put DES on notice Bosselait, we held that the petitioner’s statement to the tribunal that a statute employee] thereby meant to raise a constitutional issue.” Id. at 607. In level is whether the claim was “sufficient to put anyone on notice that [the time.” to determine if a constitutional claim was sufficiently raised at the tribunal (1988), cert. denied, 488 U.S. 1011 (1989). Bosselait also provides that the test

to the appellate board after the tribunal had reached a final determination, are In Appeal of Bosselait, we held that constitutional claims, first presented

(quotation omitted). demand to introduce relevant evidence and preserve an issue for appeal.” Id. supporting his theory of relief, or to make an offer of proof sufficient to justify a forum, there is no opportunity for a party to develop a factual record Id. (quotation omitted). Therefore, “[u]nless a claim is raised in the trial narrowed; it does not provide an opportunity to raise new issues for the first administrative appeal, in which issues previously raised may be waived or __, 887 A.2d at 143. “The appellate board provides an intermediate p. 6 6

application process. Accordingly, the refund claim is not properly before us. cited no persuasive reason why he should not have to submit to the refund

refund of employer contributions pursuant to RSA 282-A:149. Kaplan has

assuming either is eligible to do so, ever filed an application for adjustment or

BRODERICK, C.J., and DALIANIS and GALWAY, JJ., concurred.

The record is devoid of any indication that either Kaplan or Kinderworks, unemployment contributions must file an application with the commissioner. Under RSA 282-A:149, employers who seek adjustment or refund of

RSA 282-A:149 (1999). premature as he has yet to exhaust the administrative remedies prescribed by behalf from 1984 to 2004. DES counters that, at best, Kaplan’s refund claim is