2009-119, Petition of James M. Mooney

The petitioner, James M. Mooney, appeals the

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based his recommendation upon Mooney’s 1994 arrest and 2004 conviction for criteria for a positive diagnosis for alcohol dependency or abuse.” Burnford recommended that Mooney complete additional treatment because he met “the

Michael A. Delaney

THE SUPREME COURT OF NEW HAMPSHIRE

attorney general, on the brief), for the respondent.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes 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 considering its merits because he failed to appeal the hearings examiner’s p. 2 The State argues that we should dismiss Mooney’s appeal without

Subsequently, Mooney filed this petition for a writ of certiorari.

in full force and effect. respect to your motion, and [the hearings examiner’s] decision remains statutes for a motion for rehearing. Accordingly, no action is taken with report in this matter. There is no provision in the applicable rules or [T]he appeal process is correctly stated in [the hearings examiner’s]

stated, in relevant part: department of safety responded in a letter dated January 15, 2009, which Mooney moved for a rehearing before the department of safety. The

Division of Motor Vehicles. or delay the suspension resulting from the action by the Director of the of this order. Pursuant to Saf-C 203.26, this appeal does not postpone court in the county wherein he/she resides within 30 days from the date the Director of the Division of Motor Vehicles, may appeal to the superior Appeal rights (RSA 263:76): Any person aggrieved by the decision of

treatment “is not a penalty.” The report included the following language: arrest in determining that Mooney needed additional treatment, and that such The hearings examiner determined that Burnford properly used the 1994 A:42, II permitted the IDIP to require Mooney to complete additional treatment. vehicles, concluding that “the administrative rule is valid,” and that RSA 265- The hearings examiner affirmed the decision of the division of motor

court may impose further treatment and counseling. arrest not resulting in a conviction.” Mooney argued that only a sentencing rule has no statutory authority permitting “penalties to be imposed for an arbitrary and capricious and . . . violates his constitutional rights” because the using to [require him to complete additional treatment] is unconstitutional, punishment.” He contended that “[t]he administrative rule the program is which did not result in a conviction for purposes of imposing a penalty or At the hearing, Mooney argued that the IDIP could not “use an arrest

Admin. Rules, He-A 707.12(g)(2), 707.16. further treatment was necessary. p. 3 See RSA 265-A:18, VII(c) (Supp. 2009); N.H. sought a hearing before the department of safety to contest the finding that notified Mooney that his license remained suspended. Mooney successfully re-offending. Based upon this recommendation, the division of motor vehicles Institute’s risk assessment, which indicated that he had the highest risk of driving while intoxicated, and his answers to the Prevention Research See and improper for the department of safety to uphold Burnford’s determination. to rely upon his 1994 arrest to determine that he required further treatment, license. However, Mooney’s central claim is that it was improper for Burnford from decisions made by the division of motor vehicles to suspend or revoke a The plain words of RSA 263:76 indicate that it governs appeals stemming

examiner’s decision, Mooney’s appeal is properly before us pursuant to RSA Because there is no other law providing for an appeal from the hearings

unjust or unreasonable.” RSA 263:76. satisfied, by a clear preponderance of the evidence before it, that such order is division of motor vehicles: (1) because of errors of law; or (2) if “the court is reasonable.” The court may only set aside the decision of the director of the 3 all questions of fact properly before him shall be deemed prima facie lawful and vehicles] is unreasonable or unlawful,” and “[a]ll findings of the director upon court determines “whether the decision of the [director of the division of motor court in the county where such person resides.” Upon review, the superior suspended or revoked . . . may petition, within 30 days thereafter, the superior appeal this decision to the superior court pursuant to RSA 263:76. decision of the director to suspend his license. Accordingly, Mooney could not Burnford’s recommendation that he requires further treatment, not any this court, he challenges the decision of the hearings examiner upholding vehicles). As demonstrated by his motion for rehearing and by his petition to department of safety or his designee, not before director of division of motor RSA 265-A:18, VII(c) (providing for hearing before commissioner of

in the words of the statute considered as a whole. Appeal of Pennichuck Water RSA 263:76 provides that “[a]ny person whose license has been interpretation, we are the final arbiters of the legislature’s intent as expressed must construe RSA 263:76 and RSA 21-P:13. In matters of statutory To determine which statutory provisions apply to Mooney’s petition, we

Appeal of Astro Spectacular, 138 N.H. 298, 300 (1994). legislation nor add words which the lawmakers did not see fit to include. harmoniously. Id. Courts can neither ignore the plain language of the as reasonably possible, we will construe the various statutory provisions where reasonably possible, to effectuate their underlying policies. Id. Insofar consideration of the plain meaning of the relevant statutes, construing them, the context of the overall statutory scheme. Id. Our analysis must start with Works, 160 N.H. 18, 27 (2010). We interpret statutes not in isolation, but in

otherwise provided by law.” safety, and RSA chapter 541 governs appeals from such hearings “[u]nless RSA 21-P:13 (2000) establishes a bureau of hearings within the department of contends that his petition is properly before us pursuant to RSA chapter 541. decision to the superior court pursuant to RSA 263:76 (2004). Mooney these purposes and does no more than fill in statutory gaps. p. 4 problems. The State contends that Rule 707.12 is valid because it furthers purpose of RSA chapter 265-A, which is to protect the public and treat alcohol be used to consider whether further treatment is required, consistent with the The State argues that alcohol or drug-related motor vehicle arrests may

more alcohol or drug-related motor vehicle arrests or convictions.” N.H. requiring the client to complete further treatment, “if . . . [t]he client has 2 or exit evaluation and assessment interview [to] issue a positive finding, thus” challenge to Rule 707.12(c)(3), which requires the counselor “conducting the 4 Although Mooney makes several arguments, the crux of his petition is a

Findings of fact made by a hearings examiner are prima unlawfully modifies statutory law. not specifically authorized by statute. Mooney also argues that the rule that Rule 707.12(c)(3) imposes a penalty for an arrest, and that the penalty is clinically contraindicated.” N.H. Admin. R., He-A 707.12(d). Mooney argues judgment of both the [counselor] and the program director a positive finding is has two or more alcohol motor vehicle arrests or convictions “but in the the program director,” decline to impose further counseling where the client Admin. R., He-A 707.12(c)(3). The counselor may also, “after conferring with

541:13. unlawful. Appeal of Jean-Guy’s Used Cars & Parts, 159 N.H. at 39; see RSA appealing party must prove that the decision was clearly unreasonable or that such order is unjust or unreasonable. Id.; RSA 541:13 (2007). The unless the court is satisfied, by a clear preponderance of the evidence before it, We will not set aside the hearings examiner’s decision except for errors of law, reasonable. Appeal of Jean-Guy’s Used Cars & Parts, 159 N.H. 38, 39 (2009).

merits of his petition. certiorari, we will treat it as an appeal pursuant to RSA 541:6. We turn to the RSA 541:6. Thus, while Mooney styles his petition as a petition for writ of such rehearing, the applicant may appeal by petition to the supreme court.” or, if the application is granted, then within thirty days after the decision on RSA 541:5. “Within thirty days after the application for a rehearing is denied, suspend the order or decision complained of pending further consideration.” rehearing,” the hearings examiner must “grant or deny the [motion], or or covered or included in the order.” Next, “[u]pon the filing of such motion for for a rehearing in respect to any matter determined in the action or proceeding, any order or decision . . . any party to the action or proceeding . . . may apply accordance with RSA 541”). RSA 541:3 provides that “[w]ithin 30 days after otherwise provided by law, all rehearings and appeals shall be held in 21-P:13 and RSA chapter 541. See RSA 21-P:13 (providing that “[u]nless operation of cars by persons under the influence of intoxicating liquor.” State p. 5 We have stated “that the purpose of the DWI statutes is to prevent the 5

152 N.H. at 621. and therefore has the force and effect of a law. See Portsmouth Country Club, Rule 707.12(c)(3) was promulgated pursuant to a valid delegation of authority protect the public. Id.; see Goding, 126 N.H. at 52. Accordingly, we hold that rule “fill[s] in [the] details to effectuate the purpose of the statute,” which is to Portsmouth Country Club, 152 N.H. at 621 (quotation omitted). Rather, this Rule 707.12 “add[s] to, detract[s] from, or in any way modif[ies] statutory law.” Health and Human Services to promulgate rules governing the IDIP. See drug-related motor vehicle arrests or convictions.” We cannot conclude that The legislature delegated authority to the New Hampshire Department of presumption of successful completion” if “[t]he client has 2 or more alcohol or and assessment interview [to] issue a positive finding, thus overcoming the above, Rule 707.12(c)(3) requires the counselor “conducting the exit evaluation (quotation omitted). Rule 707.12(c)(3) effectuates this purpose. As noted of New Hampshire and visitors from out-of-state who use our highways.” Id. “intoxicated drivers are a severe threat to the health and safety of the citizens to RSA chapter 265-A). The “declared policy of the legislature” is that v. Goding, 126 N.H. 50, 52 (1985) (quotation omitted) (construing predecessor

265-A). Parmenter, 149 N.H. 40, 46 (2002) (construing predecessor to RSA chapter whether . . . an individual is in need of further counseling.” State v. legislature “has specifically granted the IDIP the authority to determine of this section and the protection of the public”). We have recognized that the driving privileges” and “[a]ny other matter related to the proper administration in order for drivers who have completed [the IDIP] to regain their licenses or human services to adopt rules regarding “[p]rocedures and forms to be followed 265-A:39, IV(a), (e) (requiring commissioner of department of health and

794, 803 (2005). authority have the force and effect of law. State v. Elementis Chem., 152 N.H. promulgated by administrative agencies pursuant to a valid delegation of authority. Appeal of Gallant, 125 N.H. 832, 834 (1984). Rules and regulations regulations that contradict the terms of a governing statute exceed the agency’s administrative action.” Opinion of the Justices, 121 N.H. at 557. Agency “[T]he legislature must declare a general policy and prescribe standards for p. 6 617, 621 (2005) (quoting Opinion of the Justices, 121 N.H. 552, 557 (1981)). of the statute.’” Portsmouth Country Club v. Town of Greenland, 152 N.H. authority to administrative agencies to “‘fill in details to effectuate the purpose from, or in any way modify statutory law,’” the legislature may delegate the Although “‘[r]ules adopted by State . . . agencies may not add to, detract conclude that they are without merit and do not warrant further discussion.

We have carefully considered Mooney’s remaining arguments and

BRODERICK, C.J., and DALIANIS, HICKS and CONBOY, JJ., concurred.

Affirmed

Vogel v. Vogel, 137 N.H. 321, 322 (1993).

predecessor to RSA chapter 2 p. 6 65-A). counseling in order to have his or her license restored.”) (construing that the individual receive additional counseling, the person must complete the Parmenter, 149 N.H. at 46 (“If, at the completion of the IDIP, it is recommended arising out of the final evaluation given to the offender at the [IDIP].” See also completion” of [an] [IDIP] as “meeting further counseling requirements, if any, 265:82-b, I(a)(3) (2004) (repealed). RSA 265-A:18, VII(c) defines “[s]uccessful such person has furnished proof of successful completion of an [IDIP].”); RSA privilege has been revoked or suspended pursuant to RSA 265-A:2, I . . . until not restore the license or driving privilege of any person whose license or See also RSA 265-A:42, I (“The director of the Division of Motor Vehicles shall [IDIP] prior to the restoration of the . . . driver’s license or privilege to drive.” 2010), which requires Mooney “to furnish proof of successful completion of an Rule 707.12(c)(3) is also consistent with RSA 265-A:18, I(a)(3) (amended