2012-363, Appeal of William Stewart

Michael A. Delaney, attorney general (Patrick J. Queenan, attorney, on

William Stewart, self-represented party, on the brief.

(New Hampshire Department of Employment Security) APPEAL OF WILLIAM STEWART

certifying officer denied the application. The officer determined that Stewart

Following his termination, Stewart applied for unemployment benefits. A DES

No. 2012-363 enforcement director for the City of Laconia from March 14 to June 29, 2011. Department of Employment Security The record supports the following facts. Stewart worked as the code

unemployment benefits. We vacate and remand.

reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

the brief), for the New Hampshire Department of Employment Security.

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. a.m. on the morning of their release. The direct address of the court's home

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 administrative findings, inferences, or conclusions are:

case for further proceedings, as determined by the court, only if the shall reverse or modify the decision of the appeal tribunal, or remand the

$16,605.90 in the fourth quarter.

individual’s benefit year.” RSA p. 2 282-A:2, II. stubs also show that his pay checks for these periods were dated March 25, April 1, and April 8. base period” of “the last 4 completed calendar quarters immediately preceeding the first day of the tribunal as to the weight of the evidence on questions of fact. The court pay periods: March 14 to March 20; March 21 to March 27; and March 28 to April 3. The pay The court shall not substitute its judgment for that of the appeal 3 Three of Stewart’s pay stubs show that he had earnings of $1,057.70 for each of the following quarter of his alternate base period were only $1,057.70, while he earned tribunal was referring to Stewart’s alternate base period earnings. Our review of DES decisions is governed by RSA 282-A:67, V (2010): to establish a claim for unemployment benefits.” However, the decision makes clear that the 2 The tribunal’s decision states that Stewart had “insufficient quarterly earnings in the base period

earned at least $1,400 in two quarters of the base period, the statute provides for an “alternate the earnings requirements of RSA p. 2 282-A:25.” RSA 282-A:4. For an individual who has not with the first day of the week in which an individual files an initial claim for benefits and meets RSA 282-A:2, I, “benefit year” with respect to any individual “means the one-year period beginning immediately preceding the individual’s benefit year.” With an exception not pertinent here, see 1 RSA 282-A:2, I, defines “base period” as “the first 4 of the last 5 completed calendar quarters

benefits because the employer-reported gross wages paid to him in the third quarterly earnings under RSA p. 2 282-A:25 to establish a claim for unemployment denying Stewart’s claim. The tribunal found that Stewart had insufficient administrative remedies, Stewart filed this appeal.

third-quarter earnings.

alternate base period. Following a hearing, the tribunal affirmed the decision p. 2 282-A:25 are determined on the date of receipt. After exhausting his of Tennis, 149 N.H. 91 (2003), for the proposition that earnings under RSA base period was March 31, 2011. The tribunal relied on our decision in Appeal

earnings of at least $1,400 in both the third and fourth quarters of his Stewart appealed the decision to the tribunal. He argued that he had

context of the overall statutory scheme and not in isolation. look to legislative intent. Furthermore, we interpret statutes in the 3 Unless we find that the statutory language is ambiguous, we need not

[within the base period or alternate base period] the individual must have

Statutory interpretation is a question of law that we review de

when payment is received.” DES counters that Appeal of Tennis “held that the construe that language according to its plain and ordinary meaning. unemployment statutes happens when services or labor are performed, not

individual have “annual earnings, of which in each of the 2 calendar quarters To obtain unemployment benefits, RSA 282-A:25 requires that an

Resolution of this issue requires that we interpret RSA 282-A:25.

otherwise.”

See Appeal of Moore, 164 N.H. 102, 103-04 (2012). we first look to the language of the statute itself, and, if possible, unemployment benefits. He asserts that “‘earned’ under the New Hampshire in the words of a statute considered as a whole. In interpreting a statute, Otherwise, the court shall affirm the appeal tribunal’s decision. novo. We are the final arbiter of the intent of the legislature as expressed

necessary, we first address his statutory claims. See State v. Wamala, 158

A:25 and [DES] is not authorized ‘to exercise discretion’ to determine date of receipt is the proper method for determining earnings under RSA 282-

insufficient quarterly earnings under RSA 282-A:25 to establish a claim for Stewart argues that the tribunal erred in concluding that he had (e) Affected by other error of law.

N.H. 583, 592 (2009). whole record; or

(d) Clearly erroneous in view of the substantial evidence on the claims. Because we decide cases on constitutional grounds only when On appeal, Stewart raises a number of constitutional and statutory (c) Made upon unlawful procedures;

(b) In excess of statutory authority;

(a) In violation of constitutional or statutory provisions; determining earnings under the statute” supports DES’s interpretation of the

p. 4 purposes.” Id. at 94.

our statement that “the date of services performed cannot be the touchstone for

within the meaning of RSA 282-A:25. Id. at 92-93. We offered two reasons in

exercise similar discretion in determining earnings for RSA 282-A:25

authorized ‘to exercise discretion’ to determine otherwise.” Read in isolation, quarter in which the employee performs services.” Id. at 94. Second, we noted

hindsight, appears broader than was necessary, Appeal of Tennis does not Although we acknowledge having used language that, with the benefit of services for his employer, he had not “earned” the payments in that quarter

RSA 282-A:25 indicates that “the legislature did not intend to authorize DES to may find can be reasonably said to apply,” the absence of similar language in be deemed to have been received for such week or weeks as the commissioner

proper method for determining earnings under RSA 282-A:25 and [DES] is not “contain[s] language that limits earnings to income received in the same stand for the proposition that, in all circumstances, “the date of receipt is the

wages or performs services that entitle him or her to wages. Of course, in Thus, an applicant has earnings under the statute when the applicant receives received the severance payments in a quarter in which he performed no

applicant’s unemployment benefits under RSA 282-A:25. See Appeal of Tennis,

that because RSA 282-A:14, III provides that “[w]ages or earnings or both shall DES’s reliance on our decision in Appeal of Tennis was misplaced. In

calculating the applicant’s earnings in both quarters. support of our decision. First, neither RSA 282-A:25 nor RSA 282-A:16

every form of remuneration for personal services paid or payable to a person that wages that are paid or payable constitute earnings under RSA 282-A:25. 149 N.H. at 94. We reversed DES’s determination that, because the applicant in employment in New Hampshire.” RSA 282-A:16 (2010). “‘Wages’ means The plain language of these sections, when read together, demonstrates determining when an applicant earned severance payments in calculating the that case, we concluded that the date of receipt was the proper method for

to be paid.” Id. at 1659. “Earn” means “to come to be duly worthy of or

the reception of pay.” Webster’s Third New International Dictionary 1620 for such services in a different quarter, those wages may not be considered in cases where an applicant performs services in one quarter and receives wages

wages . . . earned during each base period from an employer by an individual earned not less than $1,400.” The definition of “[a]nnual earnings” is “the promotion, but we cannot give it to him now.” Id. at 714. entitled to as remuneration for work or services,” e.g., “he has [earned] his

(unabridged ed. 2002). “Payable” means “capable of being paid” or “requiring

A:15, I (2010) (emphasis added). “Paid” means “receiving pay” or “marked by directly or indirectly by his employing unit, including salaries . . . .” RSA 282years without legislative interference.” Petition of Kalar, 162 N.H. 314, 321

p. 5 consistent manner and apply it to similarly situated applicants over a period of

unemployment and to lighten the burden on those workers who are broader purpose of RSA chapter 282-A – “to prevent the spread of

clause when those responsible for its implementation interpret the clause in a statutory construction. Administrative gloss is placed upon an ambiguous 5 this case.” We disagree. “The doctrine of administrative gloss is a rule of we fail to see how our reading of the statute is at odds with this purpose, or the

282-A:25] . . . the doctrine of administrative gloss also supports [its] decision in unemployment benefits to applicants regularly attached to the labor market, In a footnote, DES argues that, “[g]iven its consistent application of [RSA purpose.” Even assuming that the purpose of RSA 282-A:25 is to limit check as part of his third-quarter earnings. not identified any “inconsistencies not supported by the statutory language or

correctness in deciding the case. Id. (“Assuming that these policy rationales

merit pay. Id. Here, it is undisputed that Stewart’s paycheck dated April 1 market.” Appeal of Tennis, 149 N.H. at 95 (quotation omitted). First, in Appeal

from Appeal of Tennis, DES asserts that the “purpose of RSA 282-A:25 . . . is to inconsistencies not supported by the statutory language or purpose.” Quoting inconsistent with the policy considerations behind the statute” and will “lead to Finally, we reject DES’s argument that our decision today “is

his alternate base period, DES should have considered the amount of that underlie the current unemployment benefit statutes . . . .”). Second, DES has

simply recited the statutory purpose as alleged by DES, and assumed its of Tennis we did not determine the policy underlying the statute. Instead, we would be necessary to determine when an applicant performed services to limit [unemployment] benefits to applicants regularly attached to the labor

clause of RSA 282-A:25 is ambiguous. he received the paycheck for services that he performed in the third quarter of (2011) (citation and quotation omitted). Here, DES has not argued that any

proper method for determining earnings under RSA 282-A:25 where discretion

case. Id. In the very next sentence, however, we clarified that “the date of

was for work he performed from March 21 to March 27, 2011. Thus, because

(emphasis added). Thus, we simply concluded that the date of receipt is the method for determining earnings under RSA 282-A:25 in this case.” Id. receipt, the determination of which does not involve discretion, is the proper p. 6 6

avoid absurd or unjust results). benefits to a faultless claimant); Gray v. Kelly, 1 p. 6 61 N.H. 160, 166 (2010) (we construe statutes to (1984) (we will not interpret RSA chapter 282-A in a manner that would deny unemployment and cannot have been intended by the legislature. See Appeal of Gallant, 125 N.H. 832, 835 would be deemed to have no earnings under RSA 282-A:25. Such a result is absurd and unjust example, an employee who dutifully performed services for his employer but never received wages of receipt of wages for purposes of RSA 282-A:25 could lead to absurd and unjust results. For 4 We note that DES’s interpretation of Appeal of Tennis as requiring DES to consider only the date

V a c a t e d a n d r e m a n d e d .

remand for further proceedings consistent with this opinion. benefits based on an erroneous interpretation of RSA 282-A:25, we vacate and

DALIANIS, C.J.