2008-355, NANCY J. LAMARCHE v. STEPHANIE A. MCCARTHY (AMENDED 1/5/09)

amicus curiae. attorney general, on the brief and orally), for the State of New Hampshire, as Kelly A. Ayotte, attorney general (Suzanne M. Gorman, senior assistant

the intervenor The Office of Mediation and Arbitration. Howard J. Zibel and Karen J. Borgstrom, of Concord (on the brief), for

no brief. Getman, Stacey, Schulthess & Steere, of Bedford, for the defendant, filed

orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Simpson & Mulligan, P.L.L.C., of Lebanon (Gary Apfel on the brief and

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2008-355 Belknap

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

Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 Amended 1/5/09 the fees.

p. 2 practice.” in pending litigation in this state has been rather freely allowed as a matter of briefly setting forth his relation to the cause.” “The right of a party to intervene

the constitutionality of Rule 170 or instigated a small claims action to recover 2

be interested may become a party to any proceeding in equity on his petition

than intervening, the OMA should have filed a declaratory judgment action on the OMA has no right or direct interest in the personal injury suit, and rather had the opportunity to rule on the issues and correct any error; and second, (quotation omitted). A trial court should grant a motion to intervene if the

Brzica v. Trustees of Dartmouth College, 147 N.H. 443, 446 (2002)

Superior Court Rule 139 states, in pertinent part: “Any person shown to

violates Part 1, Article 14 of the New Hampshire Constitution.

because the OMA is a party for the first time on appeal, the trial court never The plaintiff makes two arguments against the OMA’s standing: first, violates Part I, Article 14 of the New Hampshire Constitution. to pay fifty dollars to enter mandatory alternative dispute resolution (ADR) intervene in this case. Temporary Rule 170 (Rule 170). The trial court ruled that requiring the parties As to the first question, we answer that the OMA has standing to

After

fee of $50.00 per party under Temporary Superior Court Rule 170 III. Whether the Trial Court erred when it held that the administrative the issue arises from a temporary (and not a final) rule. II. Whether the matter should have been transferred at all, given that I. Whether the OMA has standing to intervene in this matter.

moved for relief from the mandatory fifty dollar fee under Superior Court transferred three questions: questions. Thus, pursuant to Supreme Court Rule 8, the superior court trial court granted the motion for interlocutory transfer, adding two additional pro bono counsel was secured to represent the plaintiff on appeal, the determination by this court.” The trial court granted the motion to intervene. for the purpose of bringing forward the constitutional question for The Office of Mediation and Arbitration (OMA) moved to intervene “solely

injury matter. At a structuring conference for that case, the defendant orally Stephanie McCarthy are plaintiff and defendant respectively in a personal joint interlocutory appeal statement are as follows. Nancy Lamarche and Belknap County Superior Court (Smukler, J.). The facts as presented in the DUGGAN, J. This case is before us on an interlocutory transfer from appeal.

p. 3 discretion to grant the OMA intervenor status in this case.

means of recovering the fee does not preclude the OMA’s standing to bring this 3 is to determine Rule 170’s constitutionality. Thus, the fact that there are other OMA’s purpose is not to collect the fees. Rather, its sole reason for intervening

meritorious claim. It was, therefore, not an unsustainable exercise of from intervening. Indeed, this case closely parallels procedure, however, should not jeopardize its pursuit of a potentially for declaratory judgment or instigated a small claims action. Its choice of

potentially meritorious claim,” and permitted it to intervene.

petition for access to the sealed records.”

subrogation rights by instituting its own action in father’s name). Here, the proceeding to gain access to a party’s prior divorce records, which were sealed.

weighs against granting intervenor status, it is not an absolute bar. party in the subject matter of the underlying personal injury litigation bar it true in this case. The OMA more appropriately should have initiated a petition

“the newspaper’s choice of procedure should not jeopardize its pursuit of a

“[p]rocedurally, this case more appropriately should have been initiated by a to correct errors before they are presented to the appellate court.” that the newspaper had no interest in the divorce itself. Id. We held that, “[O]rdinarily, trial courts should have an opportunity to rule upon issues and Keene Sentinel, 136 N.H. at 125. The parties to the divorce objected, arguing litigants cannot generally raise issues for the first time on appeal. case instigated by boy’s father who owned the policy, or could enforce its 136 N.H. 121 (1992). In that case, a newspaper intervened in a divorce

claims suit requires dismissal. Although the availability of other remedies Nor does the fact that the OMA has no direct or apparent interest as a

no opportunity to rule on the issue and correct any error. It is true that intervene in child’s case against tortfeasor, insurer could have intervened in Cross/Blue Shield v. St. Cyr, 123 N.H. 137, 141-42 (1983) (rather than

that the court’s exercise of discretion is unsustainable. We also disagree with the plaintiff that the OMA’s ability to bring a small

opportunity to rule upon Rule 170’s constitutionality. Brum, 155 N.H. 408, 417 (2007). In this case, however, the trial court had the

We are not persuaded by the plaintiff’s argument that the trial court had

446.

(1993). We will not overturn the trial court’s decision unless we are persuaded Samyn-D’Elia Architects v. Satter Cos. of New England, 137 N.H. 174, 177 (1991). It is within the trial court’s discretion to grant intervenor status. apparent interest therein. Snyder v. N.H. Savings Bank, 134 N.H. 32, 35 party seeking to intervene has a right involved in the trial and a direct and obtain right and justice freely, without being obliged to purchase it . . . .”

p. 4 laws, for all injuries he may receive in his person, property, or character; to

petition the court for waiver of the $50.00 administrative fee.” will be designated for use by the [OMA]. . . . Parties who are indigent may 4

subject of this state is entitled to a certain remedy, by having recourse to the may agree are suitable, shall be assigned to ADR, with [certain] exception[s].”

including the collection of fees.

administrative fee of $50.00 per party. . . . This is an administrative fee which

Part I, Article 14 of the New Hampshire Constitution provides: “Every the district court, and such equity cases as the court may deem or the parties dollar fee. The underlying case here was referred to ADR and thus subject to the fifty

“moneys collected by the [OMA] from fees,” such as the fee at issue in this case. operation of the [OMA].” RSA 490-E:4, I. Among the sources of funding are choose a volunteer neutral, both parties are “subject to a one-time paid or a volunteer neutral from approved lists. Id. 170(B)(2). If the parties and select an ADR process . . . .” Id. 170(B)(1). Parties can choose either a Super. Ct. R. 170(A)(1); 170(A)(2) (exemptions). After filing, “parties shall confer

Rule 170 requires that “[a]ll writs of summons, transfers of actions from

party challenging a legislature created the “mediation and arbitration fund” to “support the that the administrative fee violates Part I, Article 14 of our constitution. The promote and administer ADR solutions in all courts. RSA 490-E:2. The OMA. See RSA 490-E:1 (Supp. 2008). The OMA was created to develop, We adopted Rule 170 in response to the legislature’s creation of the

(interpreting a statute). wherever reasonably possible. Cf. State v. Pierce, 152 N.H. 790, 791 (2005) 307 (2006). We interpret rules to avoid conflict with constitutional rights constitutional law, we review it de novo. State v. MacElman, 154 N.H. 304, a statute’s constitutionality). Because the issue before us is one of Smith v. N.H. Dep’t of Revenue Admin., 141 N.H. 681, 693 (1997) (challenging

As to the final question, we answer that the trial court erred in holding

appeal. appeal argues that Rule 170’s temporary nature precludes an interlocutory does not mean that the case could not have been transferred. No party on As to the second question, we answer that Rule 170’s temporary nature

risk of appearing to be an improper purchase of justice.”

constitution was designed to prevent.”

a compelling governmental interest and must be necessary to the master, a master would have decided their case free of charge. Id. at 704. We most exacting scrutiny; to pass constitutional muster, they must be justified by his share of the fee. Id. Had the parties not chosen to proceed with a special proceedings. Christy & Tessier, 126 N.H. at 70 p. 5 5. The defendant refused to pay discrimination.” In Christy & Tessier, we upheld a special master’s fee in divorce

constitutional.

objective.” ancient England and does not cause the mischief that article 14 of our challenged legislation be substantially related to an important governmental fee “in no way resembles the arbitrary exactions paid to corrupt officials in that the fee required him to purchase justice. Id. at 177. We stated that the violation to superior court. Basinow, 117 N.H. at 178. The defendant argued In Basinow, we considered an eight dollar filing fee to appeal a parking

based upon suspect classes or affecting a fundamental right are subject to the N.H. at 367 (quotation omitted). constitutional standard to be applied is that of rationality.” Follansbee, 1 p. 5 51 for defense under like conditions and with like protection and without right, or application of some recognized suspect classification, the absent some infringement of a fundamental right, an important substantive (2007) (citing United States v. Virginia, 518 U.S. 515, 533 (1996)). “Finally,

Cmty. Res. for Justice v. City of Manchester, 1 p. 5 54 N.H. 748, 762

of a fundamental right. “[I]ntermediate scrutiny under the State Constitution requires that the or filing fees in the absence of the appearance of impropriety or the deprivation Id. (quotation omitted).

In determining the level of scrutiny, we have stated that “[c]lassifications

that all litigants similarly situated may appeal to the courts both for relief and Follansbee, 1 p. 5 51 N.H. at 367 (quotation omitted). scope of the State-created classification and the individual rights affected.” proceeding and procure favor.” determine the appropriate standard of review by examining the purpose and Witte, 126 N.H. 702 (1985); Basinow, 117 N.H. at 176. In each case we “first

Our prior decisions have generally affirmed the validity of administrative

(quoting Basinow, 117 N.H. at 177).

Follansbee v. Plymouth Dist. Ct., 1 p. 5 51 N.H. 365, 367 (2004)

(quotation omitted). It “is basically an equal protection clause in that it implies

revenue, but the fines which were anciently paid to expedite or delay law Article 14 “was designed to abolish, not fixed fees, prescribed for the purpose of p. 6 6

litigants is tantamount to requiring one to purchase justice. She argues that

decision in the other is one that [cannot] be tolerated.”

the allocated session days.

The plaintiff in this case argues that imposing a fifty dollar ADR fee on

therefore held the fee unconstitutional.

or attorney giving cash in one hand and receiving a judicial hearing and heightened sensitivity to appearances of impropriety, the spectacle of a citizen and “smacks of the purchase of justice.” fundamental to our system of criminal justice. Id. at p. 6 684, 685. “In an era of distinguishable from an otherwise constitutional filing or administrative fee, by charging fees to hear cases in “special sessions.” Id. Such a fee, we held, is

probate courts were unable to hear the large number of pending cases within judicial decision for a party.” Estate of Dionne, 128 N.H. at p. 6 685. At the time, fee to a judge in consideration of his holding a special session and rendering a results in actual or apparent bribery, we have found it to be unconstitutional. In Estate of Dionne, we held that Article 14 “forbid[s] the payment of a

purchase a jury trial even for so nominal a sum as eight dollars.” Id. rational basis review and upheld the fee as constitutional. scrutiny, we therefore held that “a criminal defendant cannot be required to

at 147. We recognized that the right to a jury trial in criminal cases is regardless of the arrestee’s ability to pay immediately. appeal a misdemeanor for a trial de novo in superior court. Cushing, 119 N.H. In Cushing, the defendant challenged an eight dollar fee required to

N.H. 147 (1979). See In re Estate of Dionne, 128 N.H. p. 6 682, 684 (1986); State v. Cushing, 119

Where, by contrast, a fee deprives a party of a fundamental right, or

refusal to pay the fee did not deprive an arrestee of any right, we conducted a compensation.” simply created a liability on the arrestee to pay thirty dollars. Id. Because the inadequate or unfavorable treatment by a master who received no special Id. at 371. The hearing commissioner was nonetheless required to hold a hearing and set bail commissioner would receive a timely bail determination. The bail chose to wait for a regular court session rather than appear before a bail bail. Follansbee, 151 N.H. at 3 p. 6 66, 371. We began by noting that arrestees who In Follansbee, we upheld a thirty dollar fee for a bail commissioner to set

constitutional under rational basis review. proceed with a special master. Id. at 705. We otherwise found the fee clients to give formal written indication that they understood their choice to

Id. To avoid any appearance of impropriety, we required

to pay a share of a special master’s fee out of fear that the only alternative was “heightened by the real possibility that an unsophisticated litigant would agree is “any sanction that is just under the circumstances.”

fails without good cause to appear at an ADR session scheduled pursuant to unconstitutional. Rule 1 p. 7 70(F) provides sanctions “if a party or party’s counsel

(discovery sanctions). decisions are non-binding. default judgment); Daigle v. City of Portsmouth, 131 N.H. 319, 325 (1988) neutral does not apprise the trial court of his or her assessment and any American Express Travel v. Moskoff, 144 N.H. 190, 191 (1999) (imposition of sanctions is a matter left largely to the discretion of the trial court. See purpose of revenue.” Id. The imposition of protect—bribery. The fee here is a reasonable “fixed fee[], prescribed for the

We also disagree with the plaintiff that possible sanctions render the rule

685, is therefore absent in this case. appearance thereof, which was the concern in Estate of Dionne, 128 N.H. at

neutral is not a judge and has no power to make judicial decisions. The

no way does it resemble the mischief against which Article 14 was intended to The fifty dollar fee here is akin to the fee in Basinow, 11 p. 7 7 N.H. at 178. In

basis review. Id. at 368. The same is true in this case. time did not deprive arrestees of their right to bail, it was subject to rational Follansbee, 151 N.H. at 3 p. 7 71. Because imposing a fee to be paid at a future claims court); receive a hearing regardless of his or her ability to pay immediately. bail assessment did not violate our constitution because an arrestee would others, and should be upheld. 853 (1988)). For example, in Follansbee, we held that a thirty dollar fee for a County Court, 508 N.E.2d 1331 (Ind. Ct. App. 1987), cert. denied, 488 U.S. 644, 651 (5th Cir.), cert. denied, 539 U.S. 915 (2003)); Estate of Payne v. Grant Follansbee, 151 N.H. at 368 (citing Broussard v. Parish of Orleans, 318 F.3d subject to strict scrutiny, there must be an actual deprivation of the right. CONST. pt. I, art. 20; however, for limitations upon a fundamental right to be There is no question that the right to a jury trial is fundamental, see N.H.

civil jury fee).

Fox v. Hunt, 619 So. 2d 1364 (Ala. 1993) (affirming fifty dollar

N.W.2d p. 7 731 (Wis. 1981) (affirming fee for defendant to receive jury trial in small

administrative fee. Such fees have been found constitutional in this state and State, as amicus, responds that the fifty dollar fee is akin to a filing or other trial and should be equated to the fee levied in Cushing, 119 N.H. at 14 p. 7 7. The such a fee and the sanctions for not paying infringe upon the right to a jury p. 8 8

unfavorable treatment during ADR or any later trial.

GALWAY and HICKS, JJ., concurred.

fundamental right. construe the rule to impose a liability upon a defendant to pay fifty dollars. Reversed and remanded. superior court as well as this court, and do not constitute a deprivation of a reasonable and constitutional. Such dismissals occur regularly in both the See id. at 703. that their refusal to pay immediately will not result in inadequate or any appearance of impropriety, however, trial courts should inform defendants results in the action being dismissed. had defendant given written consent to refer case to special master). To avoid bear the burden of paying to institute an action. Failure to pay those costs that must be paid at some point. See Christy & Tessier, 126 N.H. at 705 (collection action would be enforceable should not alone bar further litigation. The fee is, however, a litigation cost the State from taking measures to recover the fee, including a collection action. time. If a defendant refuses to pay the fee, our constitution does not prohibit however, required to pay the costs of litigating a case (constitutional rights). That liability can be met immediately, or at some future Pierce, 152 N.H. at 791 (we construe statutes to avoid conflicts with

third party into the case. those defendants of their constitutional right to a jury trial. Rather, we judgment against the defendant. Such a sanction would effectively deprive pay a filing or administrative fee, such as the fee in this case, is both jury trial, the sanction under section F for failure to pay the fee cannot include Moreover, in the case of a defendant who has a constitutional right to a

comes to paying the costs of instigating litigation. Plaintiffs, on the one hand,

copying costs etc.). Thus, a defendant’s failure to pay the fifty dollar ADR fee

(counterclaims require only notice prior to structuring conference). They are, bring third party into a case, need only provide notice); Super. Ct. R. 62

do the rules require a defendant to pay a fee to assert counterclaims or bring a other hand, are not required to pay fees before accessing the courts. Nowhere case if the trial judge found it appropriate. Dismissal for a plaintiff’s failure to See Super. Ct. R. 3. Defendants, on the refusal to pay are broad. Indeed, such sanctions could include dismissal of the plaintiffs and defendants. Available sanctions under section F for a plaintiff’s Defendants, however, are on different footing than plaintiffs when it

administrative fee, the fee here is constitutional as applied to plaintiffs. docket absent an entry fee); Sup. Ct. R. 5 (same). Like any filing or other

of accessing the courts, we conduct separate analyses of Rule 170 in regard to Because the plaintiff and the defendant are situated differently in terms