2010-828, Christopher Ruel v. New Hampshire Real Estate Appraiser Board

Bianco Professional Association

No. 2010-828

Merrimack

Kingston. The New Hampshire Department of Transportation (DOT) sought to order of the Superior Court (McNamara spring of 2007, Kenneth Frederick hired Ruel to appraise his property in The pertinent facts, as established by the record, are as follows. In the LYNN, J. Christopher Ruel, a licensed real estate appraiser, appeals an

Michael A. Delaney

We affirm. Hampshire Real Estate Appraiser Board (Board) for a new disciplinary hearing.

Appraiser Board. and Elyse S. Alkalay, attorney, orally), for the New Hampshire Real Estate attorney general, and Kristen A. Fiore, attorney, on the memorandum of law,

the brief and orally), for Christopher Ruel.

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 fees. p. 2 competency to testify as a witness. Finally, he asks us to award attorney’s that the superior court erred in not reviewing Shea’s qualifications and without a quorum violated his due process rights. In addition, Ruel contends Board’s determination to continue with the hearing and render a final decision dispose of his case; (3) the Board’s delay materially prejudiced him; and (4) the the Board violated its governing statute by taking more than two years to the initial grievance and, therefore, the case should never have been heard; (2) the Board proceedings against him because: (1) LeMay lacked standing to file On appeal, Ruel argues that the superior court should have dismissed

order without a quorum of its membership participating. This appeal followed. the Board conducted a portion of the disciplinary hearing and issued its final arguments, but remanded the case to the Board for another hearing because in the Board’s procedures. The superior court rejected most of Ruel’s Ruel sought certiorari review in the superior court, alleging several errors

Board voted to order Ruel to pay a $500 fine and attend two appraisal courses. at a public hearing on February 12, 2010. In April 2010, four members of the submitted requests for findings of fact and rulings of law, which were ruled on 2 member left the hearing and did not participate in deciding his case. Ruel both Shea and Ruel testified; however, during Ruel’s testimony, one Board 2009, so that its investigator, Shea, would be present to testify. At the hearing, dated August 27, 2009. The Board continued the hearing until December 18, hearing for November 13, 2009. Ruel received notice of this hearing in a letter After Ruel rejected the settlement offer, the Board voted to schedule a

to the settlement offer. April 2009, the Board granted Ruel’s request to extend the deadline to respond pursuant to Board procedure, the Board sent Ruel a proposed settlement. In but the two had several phone calls discussing possible sanctions. Later, scheduled meeting with Gallus, the grievance officer in charge of his matter, the professional rules. On December 2, 2008, Ruel failed to appear for a Board on October 30, 2008, noting Ruel’s “substantial” non-compliance with an April 25, 2008 letter from the Board. Shea submitted his report to the Barry Shea for a second investigation. Ruel received notice of the allegations in assigned the case to an investigator, Peggy Gallus. Later, it was assigned to On November 16, 2007, the Board voted to investigate the grievance and

the Board on September 25, 2007. George LeMay, reviewed Ruel’s appraisal and filed a grievance against him with than did Ruel. After finalizing the settlement, a DOT appraisal supervisor, appraisal and valued the property at approximately fifty thousand dollars less appraisal in negotiating a settlement with DOT. DOT performed its own take Frederick’s property by eminent domain and Frederick used Ruel’s commence a disciplinary proceeding. p. 3 with the provisions of this chapter, shall

IV. The board, on its own motion and in accordance

the board. III. Disposition of all grievances shall be voted on by

90 days.

further investigation, it shall be acted upon within II. If the board determines that a grievance requires

regulates; and (b) Requires the services of an appraiser.” RSA 310-B:2, IX (Supp. 2011). institution’s regulatory agency or the Resolution Trust Corporation engages in, contracts for, or 1 A “federally-related transaction” means “any transaction which: (a) A federal financial

received and reviewed by the board.

I. All grievances shall be in writing and objectively

310-B:17-a Grievances.

310-B:17-a (2005) and RSA 310-B:17-b (2005) provide as follows: interplay between grievances and complaints under the statutory scheme. RSA To decide the issues raised in this appeal, we must first determine the

& Supp. 2011)). (2005)), and to take disciplinary action against licensees (RSA 310-B:18 (2005 complaints (RSA 310-B:17-a, :17-b (2005)), to hold hearings (RSA 310-B:19 establishes procedures for the Board to receive and consider grievances and licenses and certifications (RSA 310-B:7, :8, :9 (2005 & Supp. 2011)); and examination, education and experience prerequisites for the various classes of various classes of licenses and certifications (RSA 310-B:6 (Supp. 2011)); sets provides for the licensure of appraisers (RSA 310-B:5 (2005)) and establishes a real estate appraiser board of seven members (RSA 310-B:4, I (Supp. 2011)); funding. See RSA 310-B:2, IX, X, XI (2005 & Supp. 2011). The statute creates transaction in which a federally regulated financial institution provides connection with “federally-related transactions”; i.e., any real estate 1 system for the regulation of individuals who perform real estate appraisals in §§ 3310, 3331 (Supp. 2011), RSA chapter 310-B establishes a comprehensive Institutions Reform, Recovery, and Enforcement Act of 1989, 12 U.S.C. to bring New Hampshire into compliance with Title XI of the federal Financial This is the first occasion we have had to address this statute. Enacted in 1991 regulatory scheme for real estate appraisers established by RSA chapter 310-B. Before considering Ruel’s arguments, we first review generally the

p. 4 means an allegation in writing and submitted to the board that an appraiser “complaint,” the board’s regulations supply such definitions. “‘Grievance’ Although there is no statutory definition of the terms “grievance” and

IV and never elevated this matter to a complaint. We disagree. exercised its authority to convene a “grievance hearing” under RSA 310-B:17-a, Board. The Board contends that, after the settlement was rejected, it merely involving Ruel remained a grievance throughout the proceedings before the complaint.” Despite this representation, the Board now argues that the matter not accept its proposed settlement, the “grievance [would] be elevated to a In its April 2009 proposed settlement, the Board stated that, if Ruel did

complaint in accordance with the provisions of

schedule a disciplinary proceeding on the

the provisions of this section, the board shall IV. Upon confirmation that a complaint complies with

board to determine compliance with this section. III. Properly filed complaints shall be reviewed by the

on a form provided by the board. II. To be accepted for filing, complaints shall be filed

decision of the board.

the aggrieved party does not agree with the

party may proceed with the complaint process if

310-B:17-a have been concluded. The aggrieved

filed by a dissatisfied grievant, the initiation by the Board of a formal results. If one accepts the Board’s position that, in the absence of a complaint her grievance can file a complaint, such a construction would lead to absurd suggest that only a person who disagrees with the Board’s resolution of his or appropriate. While both the statute and the regulation could be read to hold an adjudicative hearing to determine what discipline, if any, is grievance may file a complaint, in which case the Board is then required to who does not agree with the Board’s proposed disposition of his or her the board unless the grievance procedures in RSA Rab 202.02. Pursuant to RSA 310-B:17-b, I, and Rab 205.03(a), a grievant I. Complaints shall not be accepted for filing with offices of the board which complies with Rab 205.03.” N.H. Code Admin. R., “‘Complaint’ means a written and signed statement delivered or mailed to the

310-B:17-b Complaints. p. 5 5

accepted principles of administrative law. The Board’s governing statute and Ruel’s position, however, is contrary to the language of the statute and

client, Frederick. to those “directly affected” by the complained-of actions – in this case, his Exeter, 139 N.H. 4 p. 5 50, 452 (1995). He contends that standing should be limited investigation by submitting a grievance. See Nautilus of Exeter v. Town of an administrative decision should also apply to who can initiate apply. See an specify who has standing to file a grievance, the rule governing who can appeal an end and from that point forward the procedures governing complaints this case. He argues that, because the Board’s governing statute does not described in RSA 310-B:17-a and the corresponding regulations have come to standing to file a grievance and, as a result, the Board should never have heard We turn now to Ruel’s first argument. Ruel contends that LeMay lacked

the complaint II personally or by certified mail, return receipt requested, with a written copy of prior to hearing, all parties to a disciplinary hearing shall be served, either complaint based on the same alleged misconduct. disciplinary action without a hearing,” and further provides, “At least 14 days has no ability to force the Board to engage in a “do-over” by filing a new proceeding on its own motion. RSA 310-B:19 states: “The board shall take no by the Board, the matter is concluded, subject to judicial review, and a grievant to a grievance, the Board may commence an adversarial disciplinary RSA 310-B:17-b. Once that complaint has been finally adjudicated 310-B:17-a, IV and Rab 20 p. 5 5.02(b)(9) specifically contemplate that, in response action has the effect of converting the grievance into a complaint. Both RSA settlement and has determined to initiate a formal disciplinary hearing, such commences an adjudicative disciplinary hearing, the grievance procedures Board has abandoned its efforts to resolve a grievance informally through context of the entire statutory scheme, it becomes clear that once the Board added.) See Rather, the more reasonable construction of the statute is that once the also N.H. Code Admin. R., Rab 208.02(b). When read in the

filed and notice of the time and place for hearing.” (Emphasis

result” (quotation omitted)). language in a literal manner when such a reading would lead to an absurd Appeal of Geekie, 1 p. 5 57 N.H. 195, 202 (2008) (court “will not interpret statutory presume that the legislature intended such a wasteful and illogical result. See Board to hold another hearing to address the same issues again. We will not dissatisfied with the outcome could file a “complaint” and thereby force the adversary hearing conducted by the Board on its own initiative, a grievant into a complaint, the result would be that, even at the conclusion of a full disciplinary hearing against a licensed appraiser does not convert a grievance p. 6 Consolidated Edison Co. of New York v. O’Leary

its disciplinary process. conclude that this delay did not deprive the Board of its power to proceed with Board failed to meet these two statutory time requirements; however, we he received notice of the allegations. We assume, without deciding, that the action, it was required to hold a hearing on his matter within ninety days after make. under RSA 310-B:19, once the Board decided to initiate formal disciplinary grievance]” within ninety days. RSA 310-B:17-a, II. Further, he argues that, required further investigation, the Board was required to “act[] upon [the Ruel argues that once the Board determined that LeMay’s grievance

to review a negative decision that the [agency] may ultimately as those parties may offer, without creating a right in those parties

of jurisdiction to hear his case. We disagree. ninety-day time limits in the statute, and that such failure deprived the Board Ruel next argues that the Board failed to comply with two separate

parties to participate in proceedings before it, for such assistance review of agency decisions]. The [agency] is free to permit third are entirely different from the principles that apply [to seeking The principles underlying the agency’s intervention practices . . .

from these generally accepted principles of administrative law. standing requirements for filing a grievance with the Board, we will not depart agency proceedings). In the absence of language delineating more restrictive Consolidated Edison. See also RSA 541-A:32 (2007) (governing intervention in does to allow interested parties to participate in their proceedings, as in submit information about a potential violator’s actions, as LeMay did here, as it 1534 (2010). An agency has at least as much discretion to allow parties to seeking review of those decisions, on the other: Cir. 1997); see also R.J. Pierce, Jr., 3 Administrative Law Treatise § 16.10, at distinction between participating in agency proceedings, on the one hand, and, 131 F.3d 1475, 1481 (Fed. permit broad standing. This view conforms with the generally accepted

grievance process designed to encourage settlement, suggests an intent to statute’s silence as to standing, together with the informal nature of the outcome of the proposed zoning decision,” Nautilis, 139 N.H. at 452, here the seeking appellate review of a zoning decision to have a “sufficient interest in the Admin. R., Rab 205.01 (a). Unlike in Nautilis, in which we required plaintiffs require only that a grievance be in writing. See RSA 310-B:1 p. 7 7-a; N.H. Code administrative rules contain no limitations on who may file a grievance; they 7

Arbaugh v. Y&H Corp.

Fournier, 158 N.H. at 446-4 p. 7 7. as to the proper mode of enforcement, we will continue to adhere to the principles set out in Robyn W., 124 N.H. 377, 381 (1983). Lacking the benefit of a more precise legislative statement proceeding with the matter subject to the time limit? See, e.g., Smith, 138 N.H. at 551; In re legislature intend the expiration of a mandatory time limit to prohibit governmental bodies from word “jurisdictional,” we note that the dispositive inquiry is one of legislative intent: Did the have neither the occasion nor the inclination to revisit every errant or imprecise deployment of the , 546 U.S. 500, 510 (2006) (quotations and citations omitted). Although we

emphatic, ‘are not properly typed jurisdictional.’” decisions, we have clarified that time prescriptions, however time limit as “mandatory and jurisdictional.’” But in recent and others have occasionally described a nonextendable profligate in its use of the term. For example, this Court This Court, no less than other courts, has sometimes been Jurisdiction . . . is a word of many, too many meanings.

limits similar to the ones at issue here, noted that: often be more misleading than illuminating. The United States Supreme Court, discussing time 2 Characterizing mandatory time limits as “jurisdictional,” though frequently done by courts, may

unwilling to treat the time limit as jurisdictional.” Id. (quotation omitted). adjudicative dispositions for the benefit of all parties involved . . . we have been legislature has prescribed time limits out of a general interest in hastening In re Cierra L. Fournier, 158 N.H. at 44 p. 7 7 (quotation omitted). In contrast, “[w]here the are to be enforced, we must determine the appropriate mode of enforcement.” lost, absent waiver, if the case is not heard within the statutory period.” holding hearings, we have held that personal jurisdiction over a defendant is “Where the legislature has not provided how its mandatory time limits the legislature, out of liberty interest concerns, has mandated time limits for See State v. Fournier, 158 N.H. 441, 446 (2009) (quotation omitted). “Where 2 interest or merely “a general interest in hastening adjudicative dispositions.” trigger jurisdictional principles by evaluating whether they involve a liberty for enforcing mandatory time limits, we determine whether such time limits Id. Thus, absent an explicit legislative pronouncement of the appropriate mode party seeking relief has shown prejudice as a result of the statutory violation.” focuses upon two factors: consideration of the statutory goals and whether the

, 161 N.H. 185, 188 (2010) (quotation omitted). “Our inquiry

13 p. 8 8 N.H. 548, 551 (1994). We agree. they do not implicate a liberty interest. See Smith v. N.H. Bd. of Psychologists, however, that the time limits were not intended to be “jurisdictional” because indicating the intent that the statute is mandatory.”). The Board argues, word ‘shall’ is generally regarded as a command . . . [and] is significant as day period. See McCarthy v. Wheeler, 152 N.H. 643, 645 (2005) (“[U]se of the mandatory, as both statutes provide that the Board “shall” act within a ninety- The time limits imposed by RSA 310-B:1 p. 7 7-a, II and RSA 310-B:19 are 8

addressed in Smith

310-B:17-a and :19. against Ruel despite its failure to comply with the time limits imposed by RSA Board retained authority to initiate and carry out disciplinary proceedings

termination proceeding). sixty-day time limit for the issuance of a decision in a parental rights 3 p. 8 80-81 (no loss of jurisdiction where court did not comply with mandatory statutorily required thirty days following a hearing); Robyn W., 124 N.H. at Hampshire Compensation Appeals Board decision was not issued within the Appeal of Martino, 138 N.H. 612, 616 (1994) (no loss of jurisdiction where New violate parolee’s due process liberty interests absent a showing of prejudice); with statutory forty-five-day time limit for parole revocation hearing did not N.H. State Prison for Women, 159 N.H. 465, 469-70 (2009) (failing to comply though a mandatory time limit had expired. See id.; see also Barnet v. Warden, Board in Smith retained authority to conduct the disciplinary hearings, even involved important interests, they did not implicate a loss of liberty; thus, the In Fournier care and protecting the public. Id. at 551. Although the time limits in Smith thwart the primary purpose of the statute: assuring high quality mental health vindicated if the board were to lose personal jurisdiction,” doing so would the plaintiffs’ interest in a speedy disposition of the proceedings would be notice of a complaint. Smith, 138 N.H. at 550-51. We reasoned that “[w]hile failure to comply with a statute requiring a hearing within three months of Psychologists lacked authority to initiate disciplinary hearings despite its Smith. In that case, we rejected the view that the Board of Examiners of 310-B:17-a, II and RSA 310-B:19 are nearly identical to those we considered in infringement on a person’s liberty.” Id. at 447. In fact, the time limits in RSA limits at issue in this case were enacted to protect against an “unnecessary There is no indication, either express or implied, that the mandatory time

delayed the hearings. Id. at 449, 453. and remanded the case to determine whether the State or the petitioner had concluded that the time limits for such hearings were “jurisdictional in nature” commitment under [the] statute.” Fournier, 15 p. 8 8 N.H. at 449. Thus, we prejudicial to the due process rights of a person subject to involuntary substantial liberty interests,” and the violation of those time limits “is itself time limits for commitment hearings “were intended to protect the person’s sexual predators was at stake, see RSA 135-E:7, I, :9 (Supp. 2010), mandatory

, we determined that, where civil commitment of violent p. 9 9

sufficient to constitute a violation of the right to a speedy trial. See

authority to provide de novo The judiciary’s certiorari jurisdiction is limited and gives a court “no grievance to the Board’s final disposition did not materially prejudice Ruel. the superior court did not err in ruling that the delay from filing of the Board’s settlement proposal. Under all the circumstances, we conclude that meeting with the Board in December 2008 and he delayed responding to the can be attributed to Ruel. For example, he failed to appear for a scheduled N.H. 1, 10 (2002). In addition, substantial portions of the delay in this case Skilling v. United States, 130 S. Ct. 28 p. 9 96, 2916 (2010); State v. Locke, 149 , e.g., memories that results from the passage of time, have not been deemed held up to public opprobrium, having to post bail, and the general fading of demonstrated material prejudice. Even in criminal cases, impacts like being decision. Although this is a significant period of time, Ruel has not grievance was filed, until December 2009, when the Board reached its final The relevant dates are the period from September 2007, when the

prejudice are insufficient. See Concord Natural Gas, 121 N.H. at 6 p. 9 91. Upper Androscoggin, 124 N.H. 17, 27 (1983). Further, conclusory assertions of irregularities materially prejudiced him. See Appeal of Comm. to Save the 685, 691 (1981). The plaintiff bears the burden of showing that any such shows material prejudice. See Appeal of Concord Natural Gas Corp., 121 N.H. decision for a procedural irregularity, however, unless the complaining party Co. v. Schuck, 135 N.H. 427, 429 (1992). A court will not set aside an agency’s Administrative boards must follow their own rules. Attitash Mt. Service creating stress in his life. unsupported by the record. See opportunities, generating higher insurance premiums and attorney’s fees, and id. to ascertaining whether it made an error of law or reached a result capriciously. See id. And our review of the superior court’s decision is limited unsustainably exercised its discretion or acted arbitrarily, unreasonably, or certiorari proceeding in the superior court was limited to whether the agency Derry Fire Precinct v. Town of Derry, 148 N.H. 510, 512 (2002). The original its judicial discretion for the administrative judgment below.” Citizens of E.

market conditions, causing him to lose present and future business of witnesses (including himself), making it impossible to recreate real estate a final disposition in his case materially prejudiced him by dulling the memory prejudiced Ruel. He argues that the Board’s delay of over two years in issuing reverse the superior court’s decision if we find that the delay materially time frames did not remove its jurisdiction to hear the complaint, we may only Since we conclude that the Board’s failure to act within the statutory

for attorney’s fees. Because we reject Ruel’s arguments on appeal, we also deny his request

in admitting his testimony and report. Town of Derry DUGGAN, HICKS and CONBOY, JJ., concurred. several months. We cannot say that the Board acted arbitrarily or capriciously professional appraisals. Further, Shea investigated this case over the course of. Professional Appraisal Practice instructor who, like Ruel, performed The record shows that Shea was a certified Uniform Standards of

review on this alleged error. the superior court correctly rejected Ruel’s attempt to predicate certiorari

disciplinary hearings. RSA 541-A:33, II; see N.H. Code Admin. R., Rab 208. p. 10 10. 199 (2003). Moreover, the rules of evidence do not apply to an agency’s admissibility of evidence. See, e.g., McLaughlin v. Fisher Eng’g, 150 N.H. 195, An administrative agency is given broad discretion in determining the

by viewing the appraised property or meeting with him. Again, we disagree. not qualified as an expert because he did not conduct a thorough investigation the Board should not have allowed Shea to testify. Ruel argues that Shea was Finally, Ruel argues that the superior court erred by failing to rule that

violation is dismissal, rather than remand to the Board for another hearing. and we are aware of none, supporting his theory that the remedy for this disciplinary hearing without a five-member quorum, he has cited no authority, even assuming that due process required that the Board not complete his showing of material prejudice to prevail on its due process claim). In addition, Omega Entm’t, 156 N.H. 282, 288 (2007) (requiring appellant to make a Ruel’s contention that he was materially prejudiced by the delay. See Appeal of rather than remand it to the Board for a new hearing. Above, we have rejected that this alleged violation required the superior court to dismiss his case, hearing after a lengthy delay and without a five-member quorum. He contends Ruel argues that the Board violated his due process rights by holding a