2012-0828, Appeal of New Hampshire Right to Life

years as a licensed limited retail drug distributor pursuant to a contract with clinics in the state. PPNNE has operated i n New Hampshire for a number of agencies, including the Board of Pharmacy (Board), properly regulate these abortion services. As such, the petitioner wants to ensure that all state government support, by taxpayer subsidies, of medical clinics that provide NHRTL is a New Hampshire non - profit orga nization opposed to

distributor license. We affirm. Planned Parenthood of Northern New England ’s (PPNNE) limited retail drug standing to participate in administrative actions involving the renewal of the New Hampshire Board of Pharmacy’s decision that NHRTL did not have LYNN, J. The petitioner, New Hampshire Right to Life (NHRTL), appeals

attorney general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Lynmarie C. Cusa c k, assistant

the brief and orally), for the petitioner. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael J. Tierney on

No. 2012 - 828 Board of Phar macy

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, Concor d, 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 p. 2 22 as 2

We disagree. to “any person” who files a written complaint al leging misconduct by a licensee. 318: p. 2 29, I (b) (Supp. 2013) grants standing to intervene in licensing proceedings finding that it did not have standing to challenge the renewals because RSA with respect to PPNNE’s license renewals. It contends that the Board erre d in NHRTL argues that the Board erred in denying its motion for rehearing

followed. that NHRTL lacked standing to appeal the licensing decision s. This appeal 1 p. 2 2, 2012, t he Board ratified the position taken in the Oc tober 25 letter, stating statutory provisions necessary to be granted intervenor status. On December the license renewal proceedings, as it had not complied with the applicable renewal proceeding.” The letter also state d that NHRTL could not intervene in grounds that NHRTL “is neither a party nor an aggrieved person in the license Board ’s executive secretary /director denied the request for a rehearing on the opposition to the renewal s. On October 25, 2012, i n a letter to NHRTL, the the renewals of PPNNE’s license s, agai n restating the various reasons for it s motion for a rehearing. In its motion, NHRTL asked the Board to reconsider In response to the Board’s approval of PPNNE’s licenses, NHRTL filed a

applicatio ns to renew the licenses for its six clinics. days later, at its meeting on September 19, the Board approved PPNNE’s the Board, restating its opposition to the renewal of PPNNE’s licenses. T wo information from PPNNE. On September 17, p. 2 2012, NHRTL sent a third letter to renewal ap plication s until its September meeting, pending receipt of additional meeting on August 15, 2012, it voted to table c onsideration of PPNNE’s license renewal of PPNNE’s license s for a variety of reasons. At the Board’s monthly O n August 7, 2012, NHRTL sent a second letter to the Board, opposing

through September 1, p. 2 2012. 15, 2012, but notified the clinics that it had “ministerially” renewed its license s stat ed that the Board would not r eview the renewal application until August sent letter s to each clin ic acknowle dging receipt of the application. Each letter applications for its six clinics to the Board, and o n July 2, 2012, the Board 2011, and had not been renewed. On June 18, 2012, PPNNE sent renewal NHRTL claimed tha t PPNNE’s contract with DHHS had expired on June 30, therefore illegally dispensing prescription drugs at its clinics. In its letter, that PPN N E did not have a state contract in place with DHHS and was On April 1 7, 201 2, NHRTL sent a written complaint to the Board, alleging

p. 3 318:51 - b; N.H. Admin. Rules, Ph. 601.06. license s, the terms of which run from July 1 to June 30 of each year. See RSA drug distributor, PPNNE must reapply annually to the Board to renew its RSA 318:4 p. 2 2, VII (Supp. 2013); RSA 318:51 - b (Supp. 2013). As a limited retail the New Hampshire Department of Health and Human Services (DHHS). See 3

p. 3 31 8 - B.” (Emphasis added.) holders, applicants, and any other matters governed by the provisions of this chapter and RSA “[t]he [B]oard may investigate possible misconduct by licensees, permittee s, registrants, certificate holder,” RSA 318:30 (Supp. 2013), whic h addresses the Board’s investigatory powers, states that provides that such action may be taken against “any licensee, permittee, registrant, or certificate In contrast to RSA 318:29, which deals with the Board’s powers to take disciplinary action and 1

this provision means merely th at those who become licensed are subject to disciplinary provision of RSA p. 3 318:29, I(b) into the licensing section. R ather, as import ing the phrase “upon written complaint of any person” from the is strained. B ased up on its plain language, RSA 318:51 - b, IV cannot be read but also to challenges to an applicant’s request for an initial or renewal license, applies not only to complaints reg arding an incumbent licensee’s misconduct, 318:29.” RSA 318:51 - b, IV. NH R TL ’s argument that the “any person” language person licensed pursuant to this section is subject to the pro visions of RSA IV of the limited retail drug distributor licensing section, which states: “A ny The only overlap between the se two distinct statutory sections is in part

for limited retail drug distributors). (listing requirements for application for licensure); 601.06 (renewal applications license. See RSA p. 3 318:51 - b, (II)(a) - (d); see also N.H. Admin. Rules, Ph 601.03 an applicant must provide to th e Board in order to be granted that type of See RSA 318:51 - b. That section describes, among other things, the proof that section deals with the licensing of limited retail drug distributors like PPNNE. may take in response to licensee misconduct. An entirely separate statutory sufficient to support disciplinary action, and appropriate action s the Board up on when the Board may take disciplinary action, the type of misconduct I(b) pertains to licensing requiremen ts or license renewal. Rather, it focus es 1 that a licensee . . . has committed misconduct . . . .” Not hing in RSA 318:29, against any licensee . . . [u]pon written complaint of any person which alleges RSA 318:29, I (b) states: “The board may undertake disciplinary action

words which the lawmakers did not see fit to include.” Id. at 610. “Courts can neither ignore the plain language of the leg islation nor add possible, we will construe the various statutory provisions harmoniously.” Id. effectuate their underlying policies.” Id. at 609 - 10. “Insofar as reasonably of the relevant statutes, construing them, where reasonably possible, to scheme.” Id. “Our analysis must start with consideration of the plain meaning interpret statutes not in isolation, but in the context of the overall statutory considered as a whole.” Petition of Mooney, 160 N.H. 607, 609 (2010). “We final arbiters of the legislature’s intent as expressed in the words of the statute statutory interpretation. “In matters of statutory interpretation, we are the order to address the petitioner’s standing argument, we must engage in standing is, therefore, a question of law, which we review de novo.” Id. In is in dispute.” ACG Credit Co. v. Gill, 152 N.H. 260, 261 (2005). “The issue of In this case, “[t] he material facts are not in dispute; only their legal effect p. 4 4

Board’s licensing or disciplinary proceedings, or to appeal its decisions. complaint with the Board o f Pharmacy does not mean that it enjo ys a right to participate in the decision. See id. at p. 4 40 - 41. Similarly, here the mere fact that NHRTL may have “standing” to file a not qualify as a person “directly affected” for purposes of having standing to appeal the Board’s that led to the Real E state Appraiser Board’s action lacked “standing” to do so because he would 34 (2011). In Ruel, we rejected the appellant’s argument that the appraiser who filed a comp laint making – is analogous to that of the appellant in Ruel v. N.H. Real E state Appraiser Bd., 163 N.H. that of standing to participate in administrative proceedings or to appeal administrative decision - NHRTL’s argument here – which confuses the concepts of standing to make a complaint with 3 settlement.” and the complainant is given an opportunity to comment up on the terms of the proposed the matter without the consent of the complainant, “provided the mater ial facts are not in dispute by the licensee. Even in such situations, RSA 318:30, VII (Supp. 2013) allows the Board to settle complainant, is where the Board’s investigation of the complaint results in an offer of settlement of complaints that do not progress to an adjudicatory hearing, over the objection of the The only circumstance under which the statute appears to limit the Board’s discretion to dispose 2

Ru les, Ph 20 p. 4 4.07 (emphasis added). These provisions clearly show that the notified that he/she may petition to intervene in the proceeding.” N.H. Admin. the subject of a disciplinary hearing shall be served with the hearing notice and issued a regulation stating that “[a] person filing a complaint which becomes intervene.” RSA 318:31, II (2005). Consiste nt with this statute, the Board has 3 the complainant a right to receive notice and “a reasonable opportunity to investigation) warrants an adjudicatory hearing does RSA chapter 318 grant Only when the Board determine s that a complaint (and any resulting

decision. 2 further action, nor does it give the complainant the right to challenge such a deprive the Board of discretion to conclude that the complaint warrants no statute permissive . . ..”). Thus, the act of lodging a complaint does not rule of statutory construction is that the word ‘may’ makes enforcement of a I(b); s ee City of Rochester v. Corpening, 153 N.H. 571, 57 p. 4 4 (2006) (“The general may undertake disciplinary action based upon such a complaint. RSA 318:29, necessar il y lead to Board action. Instead, the provision states that the Board plain language of RSA 318:29, I (b) a complaint by “any person” does not automatic right to intervene in licensing proceedings is mistaken. Under the proceedings, NHRTL ’s argument that such a constructio n leads to an Board could be eligible to intervene in either disciplinary or licensing 318:29, I (b) is cor rect, and that “any person” who submits a complaint to the However, e ven if w e were to assume that NHRTL ’s interpretation of RSA

this fashion. See Petition of Mooney, 160 N.H. at 609 - 10. provisions of RSA 318:29.” W e are not at liberty to rewrite the statutory text in licensed or seeking licensure pursuant to this section is subject to the would require that we interpret RSA 318: p. 5 51 - b, IV as if it stated: “A ny person complaint to the Board. NHRTL ’s argument to the contrary is untenable, as it disciplinary action, and thus can be the subject of “any per son’s” written 5

affec ts the public in general.” Richards, 134 N.H. at 1 p. 5 56. “Similarly, an to appeal when the alleged injury caused by an administrative agency’s action fact” requirement is that “[n] o individual or group of individuals h as standing Utilit ies Commission ’s decision). Another way of formulating the “injury in matter of law, to convey standing upon the petitioners to appeal the Public 159 N.H. at 231 - 32 (stating that potential or future harm is insufficient, as a appea l). Nor can the injury be a mere potential harm. See Stonyfield Farm, speculative and did not give rise to a definite interest in the outcome of an Bedford, 164 N.H. 764, 769 (2013) (stating that the alleged injury was, at most, fact, the alleged harm cannot be speculative. See Hannaford Bros. v. Town of see also Appeal of Richards, 134 N.H. 148, 154 (1991). To show an injury in suf fer an injury in fact.” Appeal of Stonyfield Farm, 159 N.H. 227, 231 (2009); standing under section 541:3, NHRTL must show that it “has suffered or will judicial review of the Board’s decision. See RSA 541:4 (2007). To establish RSA 318:31, VI (2005). The filing of such a motion is a prerequisite to seeking respect to any matter determined in the action or proce eding.” RSA 541:3; see [Board], or any person directly affected thereby, may apply for a rehearing in been made by the [Board], any party to the action or proceeding before the RSA 541:3 states that “[w] ithin 30 days after any order or decision has

with the Board. a party nor an aggrieved person in the license renewal proceeding.” We agree Board found that NHRTL lac ked standing to seek rehearing, as it was “neither p. 5 541:3 (2007) to seek rehearing of the Board’ s renewal of PPNNE’s licenses. T he Finally, we also reject NHRTL ’s argument that it had standing under RSA

intervenor. by the Board of PPNNE ’s licenses. Thus, it did not attain the status of an licensing proceeding, as it did nothing more than write letters opposing renewal proceeding. RSA p. 5 541 - A:32, I(b). Here, NHRTL did not seek to intervene in the specifically asserts that its rights and interests may be affected by the the APA requires a person seeking intervenor status to submit a petition that Rather, a person seeking intervention must petition to intervene. Specifically, some action or decision an administrative agency has under consideration. merely because he or she files a complaint or letter expressing concerns as to RSA 541 - A:32, I (2007). This statute does not grant a person intervenor statu s grant one or more petitions for intervention” if certain requirements are met. intervene in licensing proceeding s, it states that “the presiding officer shall the intervention section of the APA could be interpreted to allow a third party to complaint automatically grants it intervenor status. Even if we assume that Procedure Act (APA), RSA chapter 541 - A (2007 & Supp. 2013), f iling a Also unavailing is NHRTL ’s argument that under the Administrative

intervene in the investigatory or licensing processes of the Board. mere filing of a written complaint does not, as NHRTL urges, grant it a right to p. 6 6

to obtain the r elief it seeks since, even if true, that does not affect our decision herein. 491:22 (Supp. 2013). We decline to opine as to whether NHRTL may have an alternative avenue “required to bring a Declaratory Judgment action before the Superior Court” pursuant to RSA NHRTL al so argues that it should be g ra n t ed standing before the Board so that it need not be 4

CONBOY and BASSETT, JJ., concurred.

not err i n concluding that NHRTL lacked standing under RSA 541:3. 4 interest in what it believes to be a public problem. Accordingly, the Board did NHRTL ’s membership. I nstead, these concerns merely represent NHRTL’s — it refers to deaths ca used by the alleged failure to regulate that did not affect not claim that any of its individual member s has suffered, or will suffer, harm own right s have been, or will be, specifically or directly affected. NHRTL does generalized claims alleges that NHRTL has suffered an injury in fact, or that its recently been cited as the ca use of deaths in several states.” None of these medication. NHRTL also claims that failure to regulate such clinics “has clinics, and that untrained staff members at the clinics are di spensing has con tinued to license PPNNE, that the Board is not inspecting PPNNE’s six provide abortion services. NHRTL states that it is “concerned” that the Board helping the public by ensuring that the Board properly regulate clinics that not allege a specific injury in fact. Instead, it asserts a generalized interest in In appealing the Board’s denial of its motion for a rehearing, NHRTL does

based upon a me re interest in a problem.” Id. (quotation omitted). association has no standing to challenge an administrative agency’s action