2011-187, Appeal of Erica Blizzard

Moir & Rabinowitz, PLLC

(New Hampshire Department of Safety) APPEAL OF ERICA BLIZZARD

operate a boat for three years. See New Hampshire Department of Safety (DOS) suspending her privilege to DALIANIS, C.J. The respondent, Erica Blizzard, appeals a decision of the

the boat at eighteen to twenty miles per hour, unsure of her location and investigators, she was unable to see the bow of her boat. She was operating

due to dark and inclement weather conditions. As the respondent later told

No. 2011-187 Department of Safety

piloting a motorboat on Lake Winnipesaukee. There was almost no visibility morning on June 15, 2008, the respondent, carrying two passengers, was The following facts are drawn from the record. In the early hours of the Department of Safety.

Michael A. Delaney

general, on the memorandum of law and orally), for the New Hampshire

reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 orally), for the respondent. 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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as pursuant to RSA 541:6 (2007). See p. 2 After DOS denied the respondent’s motion for rehearing, she appealed

operate a boat for three years.

I. Failure to Adopt Regulations

As a result, the hearing examiner suspended the respondent’s privilege to

raised by the respondent’s appeal in turn. governing the suspension and revocation of boat-operating privileges. See

negligent manner or so that the lives and safety of the public are endangered.” to “operate a power boat upon any waters of the state in a careless and respondent had violated RSA 270:29-a (2010), which makes it a misdemeanor

order is unjust or unreasonable.” RSA 541:13 (2007). We address the issues are] satisfied, by a clear preponderance of the evidence before [us], that such governing revocation hearings, it has never adopted specific, substantive rules decisions “shall not be set aside or vacated except for errors of law, unless [we Our standard for reviewing agency decisions is set forth by statute: such

complied with Part I, Article 15 of the State Constitution. Article 37 of the State Constitution; and (3) whether the hearing notice

270-E. A hearing was held, and the hearing examiner found that the

administration of [RSA chapter 270-E]”). Although DOS has procedural rules

do so, it lacked authority to suspend her operating privileges. See

whether RSA 270-E:17 delegates legislative authority in violation of Part I,

to exercise suspension and revocation authority pursuant to RSA 270-E:17. operating privileges for any violation of RSA chapters 270, 270-A, 270-B or Admin. Rules, Saf-C ch. 200. It argues that such rules are unnecessary for it

E:12, XII (2010) (requiring DOS to adopt rules relative to “matters related to the

relative to the administration of RSA chapter 270-E and, because DOS failed to The respondent argues that DOS was required to promulgate regulations

privileges because it has failed to promulgate associated regulations; (2) following issues: (1) whether DOS lacks authority to suspend boat-operation accordance with RSA [chapter] 541.”). The respondent’s appeal raises the a boat pursuant to RSA 270-E:17, which authorizes DOS to revoke or suspend Thereafter, DOS sought to suspend the respondent’s privilege to operate

provided by law, all . . . appeals [from DOS hearings] shall be held in

of negligent homicide, but not guilty of boating while intoxicated. with boating while intoxicated and negligent homicide. A jury found her guilty second passenger. As a result of the collision, the respondent was charged

collision killed one passenger and seriously injured the respondent and the checking her depth gauges, when the boat collided with an island. The argue that the privilege to operate a boat is a fundamental right. State v. p. 3 challenged statutory scheme is unwarranted, and the respondent does not

DOS’s suspension decision. See resulted, the absence of regulations does not, in itself, require us to overturn would not have imposed the suspension. Without some argument that harm

vagueness claim does not involve a fundamental right, a facial attack on the

which we review de

privilege. Nor does she argue that if DOS had promulgated regulations, it

unconstitutionally vague on its face, we reject her argument. When a Constitution. To the extent the respondent claims the statute is E:17 violates her due process rights under Part I, Article 15 of the State legislative authority. The constitutionality of a statute is a question of law, We next address whether RSA 270-E:17 unconstitutionally delegates

lacked notice that her behavior could result in suspension of her operating has never argued that she suffered prejudice. She does not assert that she respondent has facially attacked RSA 270-E:17 under multiple theories, but

The respondent also contends that, without additional rules, RSA 270-

II. Delegation

MacElman, 154 N.H. 304, 307 (2006).

suspension because she does not argue that the lack of rules harmed her. The

as a result of the lack of [required] rules.” Id id.

rules supplying the necessary detail. See

to effectuate its purpose” without agency regulations. Nevins

sufficient detail to effectuate its purpose, but uphold the respondent’s In this case, we assume without deciding that RSA 270-E:17 lacks

result was unfair by examining whether the complaining party “suffered harm

agency “should . . . adopt rules,” Appeal of Behavior Science Institute If the statute lacks sufficient detail on its face, then an agency must adopt

overturned, we must first examine whether the statute is “sufficiently detailed whether an agency’s failure to adopt rules requires that its decision be Institute, 121 N.H. at 935 (emphasis added). Therefore, when considering inconsistent with [the statute granting authority].” Appeal of Behavior Science whether the result of the agency’s failure to adopt rules “was both unfair and Precinct v. Atkins, 78 N.H. 308, 310-11 (1916). Our modern cases focus upon adopt rules, by itself, divested a regulatory body of its authority. See Hanover N.H. at 487, it has been nearly a century since we last held that failure to 928, 935 (1981), or even that it “was required to promulgate rules,” Nevins, 147

147 N.H. 484, 487 (2002). Thus, although we have occasionally noted that an demands on its face.” Nevins v. N.H. Dep’t of Resources and Economic Dev., [Administrative Procedure Act] . . . is not necessary to carry out what a statute We have consistently held that “promulgation of a rule pursuant to the field of its activity. Id p. 4 leave the agency with unguided and unrestricted discretion in the assigned

to an administrative agency if its commands are in such broad terms as to

:2. Marino in RSA 483-B:9 and reasonably definite policies set forth in RSA 483-B:1 and

Hampshire Constitution, the General Court may not create and delegate duties

powers article because it impliedly incorporated the basic standards set forth

chapters 270, 270-A, 270-B and 270-E because the statute limits DOS’s authority to DOS. Under the separation of powers article of the New 37 of the State Constitution because it impermissibly delegates legislative The respondent first contends that RSA 270-E:17 violates Part I, Article

laws or rules. chapters, or has allowed another person to violate any of these

(amended 2011). We held that the statute complied with the separation of while still accommodating [a property owner’s] rights.” RSA 483-B:10, I (2001) intent of [RSA chapter 483-B, the Comprehensive Shoreland Protection Act], 270-E:17 to incorporate, by implication, the standards and policies in RSA Reena D., 163 N.H. ___, ___ (decided December 28, 2011), we construe RSA with constitutional requirements when possible, see In re Guardianship of In this case, mindful of our obligation to construe statutes to comport

, 155 N.H. at 716. 270, RSA 270-A, RSA 270-B, or any rules adopted under these I. The owner has violated any provision of this chapter, RSA

operate a boat, or both, upon a showing that: registration issued pursuant to this chapter or any privilege to conditions that, “in the opinion of the commissioner, more nearly meet the commissioner is hereby authorized to revoke or suspend any Hampshire Department of Environmental Services to impose construction For example, in Marino, a statute delegated authority to the New

and a reasonably definite policy for the administration of the law. Id. unlawfully delegated legislative power, a statute must lay down basic standards either a declared policy or a prescribed standard. Id. To avoid the charge of

In addition to any other authority provided by law, the

intent.” N.H. Dep’t of Resources and Economic Dev. v. Dow

(2002). The relevant section of RSA 270-E:17 provides:

statute using the ordinary meanings of the words to determine legislative 715. When interpreting a statute, “[w]e . . . examin[e] the plain language of the upon it alone, and refer to federal law merely to aid in our analysis. See id. at respondent argues under the State Constitution only, we base our decision will not declare it invalid except upon inescapable grounds. Id. Because the 714 (2007). In reviewing a statute, we presume it to be constitutional and we position, she relies upon Guillou v. State

p. 5 legislative statement as to the length of revocation authorized.” To support her unconstitutional delegation of authority because “it is glaringly lacking any The respondent contends, however, that the statute is an

delegation of legislative power.

combined with the reasonably definite policies in RSA 270:1, avoid an unlawful lives and safety of the public are endangered.” These standards, when upon any waters of the state in a careless and negligent manner or so that the

[o]peration of [power] [b]oats,” which it defines as “operat[ing] a power boat infractions, but no specific guidelines as to suspension lengths. See

dispositive. Indeed, dicta

Although Guillou

which DOS relied when suspending the respondent’s operating privilege, RSA apparently constitutional. Id. Like RSA 270-E:17, all of these statutes give address most aspects of water recreation. In particular, the statute upon delegated authority, we gave examples of three revocation statutes that are at 582-83. After concluding that the statute under review unconstitutionally suspension duration was not even relevant to our decision. Guillou, 127 N.H.

guidance as to suspension length, this lack of guidance was not, by itself,

delegation of legislative authority. (Quotation omitted.) licenses “for any cause which he may deem sufficient” was an unconstitutional we held that a statute permitting the director of DOS to suspend drivers’

operating privileges. These standards are more than basic – they specifically

id (2010); (4) “maintain[ing] . . . safe and mutual enjoyment of a variety of uses,”

“protection of property,” id which include: (1) maintaining “public safety,” RSA 270:1, I (2010); (2) define dozens of distinct violations that potentially trigger suspension of legislature has set forth, in detail, the policies underlying RSA chapter 270, As to “basic standards,” the impliedly incorporated chapters specifically Turning first to the “reasonably definite policy” requirement, the

satisfy the policy requirement for legislative delegations of authority. incorporated chapters render the statute constitutional. legislative authority, we examine whether the policies and standards in the species,” id. We hold that these policies are reasonably definite, and, therefore, and water quality,” id.; and (7) “nutur[ing] of . . . threatened and endangered .; (5) “promotion of our tourist industry,” id.; (6) “protection of environment

scenic values which New Hampshire public waters provide,” RSA 270:1, II

chapters. Thus, to determine whether RSA 270-E:17 unlawfully delegates suspension power to individuals who violate a provision contained in those reasonableness. Arrow Distilleries

p. 6 was an avenue for judicial review of suspension lengths to ensure their

satisfies constitutional standards because the factors discussed in Arrow indicate such is warranted. Legislative delegation of this discretion to DOS to] be construed to require the . . . exercise [of] sound discretion”; and (3) there DOS the discretion to suspend operating privileges for life when circumstances of suspension [wa]s left to the discretion of the [agency]”; (2) “the section [had parole is not constitutionally infirm.” Id suspension [could] be imposed [wa]s clearly designated and only the length . . . we conclude that Congress’s implicit authorization of such a range for special the defendant’s life does not constitute an unconstitutional delegation of power,

conduct that triggers a revocation or suspension as violation of any provision of Distilleries limit DOS’s discretion. RSA 270-E:17 specifically defines the

construe the lack of a maximum suspension length in RSA 270-E:17 to grant their reasoning and apply it here. Applying Walberg, 763 F.2d at 149, we the presence of three articulated factors: (1) “[t]he offense for which only “reasonably definite policies” and “basic standards.” We, therefore, adopt Part I, Article 37 of the State Constitution that delegations of authority require the explicit provision for punishment with a range of years up to the length of These cases are compatible with both Guillou ’s dicta and the rule under

separation of powers doctrine. Id. held that the delegation of authority did not violate the Federal Constitution’s articulated factors limit agency discretion. Thus, in Arrow Distilleries v., 109 F.2d at 402. Accordingly, the court specific provisions as to length, satisfy constitutional standards when Moreover, legislation giving agencies suspension discretion, but lacking

the court concluded that it complied with constitutional requirements, noting omitted.) Although the statute lacked provisions as to suspension duration, allow courts to place defendants on special parole for life and held that “[s]ince holder had “wilfully violated any of the conditions [of the permit].” (Quotation such parole could be imposed. The Second Circuit construed the statute to delegation of the power to suspend alcohol manufacturing permits if the permit even though the controlling statute failed to specify the maximum period that Alexander, 109 F.2d 397, 402 (7th Cir. 1940), the Seventh Circuit upheld

example, in Walberg v. United States Federal Constitution’s separation of powers doctrine are in accord. For to suspension duration, but cases addressing this issue in the context of the

Second Circuit upheld a statute empowering courts to impose special parole

constitutionally delegated authority notwithstanding their lack of guidance as

, 127 N.H. at 582-83, did not explain why these statutes

(amended 1995, 199 p. 7 7, 2003, 2004, 2005, 2009). 255:1); RSA 311-B:11 (1984) (amended 1987, 2010); RSA 361-A:3 (1984) 178:11 (1977) (amended 1987; recodified as RSA 179:57, see Laws 1990, 7

E:1 p. 7 7. See DOS should promptly adopt rules relative to the administration of RSA 270-

YOUR SAFE BOATER EDUCATION CERTIFICATE. JUST CAUSE STATE OF NEW HAMPSHIRE HAS JUST CAUSE TO REVOKE III. Notice THE PUBLIC ON THE STATE’S WATERS. THEREFORE, THE Adoption of rules could eliminate this risk. Therefore, to the extent practicable, RSA 2 p. 7 70-E:17 satisfies.

DID OPERATE IN A RECKLESS DISREGARD FOR THE SAFETY OF rules caused harm or prejudice, the lack of rules might prove dispositive. DOS suspension was unjust or unreasonable, or contends that the absence of standards for permissible legislative delegation, which, as we have explained, more difficult. In a case closer than this one, in which a party argues that a We note, however, that the absence of rules makes our task on appeal

time limits. legislative authority notwithstanding its lack of specific provisions relating to inadequate under the State Constitution’s Due Process Clause. See The respondent argues that the notice of hearing she received was

WINNIPESAUKEE, GILFORD, NEW HAMPSHIRE; AND, THAT YOU OPERATOR OF A BOAT OR VESSEL, [on June 15, 2008], ON LAKE driver’s license suspension statutes are not implicated by the constitutional UPON A COMPLAINT . . . WHICH ALLEGES THAT YOU WERE THE scheme is an unconstitutional delegation. We reject this argument because the YOU ARE ORDERED TO APPEAR FOR A HEARING BASED it can suspend a license to drive an automobile, the boating privilege revocation CONST. pt. I, art. 15. The notice provided in relevant part:

that, because DOS can suspend the privilege to operate a boat more easily than In a final delegation of authority argument, the respondent contends

length are subject to judicial review for unreasonableness pursuant to RSA 21- RSA 2 p. 7 70-E:12, XII. discussed above. Finally, DOS’s decisions as to revocation or suspension suspending operating privileges by adhering to the incorporated policies

statute to require that DOS exercise sound discretion in revoking or RSA chapters 2 p. 7 70, 270-A, 270-B or 270-E. Additionally, we construe the p. 8 Appeal of Sch. Admin. Unit #44

and in order that they may enjoy that right, they must first be so notified.

has been clear: Parties whose rights may be affected are entitled to be heard, For more than a century, the central meaning of procedural due process

[No limitation followed.]

addressed only that conduct to which the notice specifically referred.

of the conduct that the hearing would address, i.e. DOS’s notice informed the respondent of the specific date, location and nature however, that read as a whole, the notice she received was fair and reasonable.

understanding of the facts and legal issues involved. Moreover, the hearing

limitations in the portion of the notice addressing RSA 270-E:17. We conclude,

hearing. Indeed, her arguments to the hearing examiner evinced a thorough the action and afford them an opportunity to present their objections. Id notice enabled the respondent to present objections both before and during the the legal authority for revoking her operating privilege was RSA 270-E:17. The

The respondent emphasizes the absence of specific scope-of-hearing

the particular facts and circumstances of the case. Id (2) WHETHER THE INDIVIDUAL HAS BEEN BOATING TO

under all the circumstances, to apprise interested parties of the pendency of (1) A REVIEW OF THE COURT ABSTRACT; in Gilford on June 15, 2008. Contrary to her argument, it informed her that required information and must be more than a mere gesture. Id HEARING SHALL BE LIMITED TO:, reckless operation of a boat

permit adequate preparation for, an impending hearing. Id

Thus, our inquiry focuses upon whether notice was fair and reasonable under

however, does not require perfect notice, but only notice reasonably calculated,

under the Due Process Clause is to apprise the affected individual of, and

RECKLESS DISREGARD FOR THE SAFETY OF THE (2) CONVICTION OF ANY ACT THAT INDICATES A p. 9 See

circumstances and complied with Part I, Article 15 of the State Constitution. provision at issue. As a result, the notice was fair and reasonable under the notice, read as a whole, adequately informed the respondent of the statutory

this provision when he suspended the respondent’s operating privilege, the

public are endangered.” Because the hearing examiner relied exclusively upon which prohibits operating “a power boat . . . so that the lives and safety of the provision in the listed chapters that fits this description is RSA 270:29-a,

270-E that related to reckless operation and risks to public safety. The only

operating privilege for violating a statute in RSA chapter 270, 270-A, 270-B or adequately apprised the respondent that DOS sought to revoke her boatomitted.) This allegation combined with the notice’s citation of RSA 270-E:17

because she has failed to demonstrate that she preserved it for our review. p. 9 See required by RSA 541-A:31 (2007). We do not address this argument, however, Finally, the respondent argues that the notice lacked certain elements

a boat “in a reckless disregard for the safety of the public.” (Capitalization HICKS, CONBOY and LYNN, JJ., concurred.

Affirmed.

In the Matter of Sukerman & Sukerman, 159 N.H. 565, 566 (2009).

id.

and legal standards involved. The notice alleged that the respondent operated respondent’s operating privilege, the notice adequately informed her of the facts negligent boating statute upon which DOS ultimately relied to suspend the

Furthermore, although the notice failed to cite RSA 270:29-a, the