2013-184, Dennis G. Huckins v. Mark McSweeney & a.

Pursuant to Supreme Court Rule 34, the United States

Samantha D. Elliott on the brief, and Mr. Bauer orally), for the defendants. Gallagher, Callahan & Gartrell, of Concord (Charles P. Bauer and

the brief and orally), for the plaintiff. Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on 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 not declare it invalid except upon inescapable grounds.” State Employees’ p. 2 “In reviewing a legislative act, we presume it to be constitutional and will

violate Part I, Article 14 of the State Constitution. recover for bodily injury. See RSA 507-B:1, I, II (2010). Under RSA 507-B:2, a

court of the question of whether RSA 507-B:2 (2010) and RSA 507-B:5 (2010) motion for summary judgment without prejudice pending certification to this meaning of RSA chapter 507-B and that the plaintiff’s action is an action to justified firing the [stun gun] a second time.” The court denied the Town’s statute.” It is undisputed that the Town is a “governmental unit” within the as provided by this chapter or as is provided or may be provided by other

in the words of a statute considered as a whole.” Roberts v. Town of Windham,

“[n]o reasonable police officer could have believed that the encounter . . . action to recover for bodily injury, personal injury or property damage, except

against McSweeney for his use of the stun gun and a claim that the Town is construction. “We are the final arbiters of the legislature’s intent as expressed “governmental unit may be held liable” in a bodily injury action “caused by its resolved in favor of its constitutionality.” Id. (quotation omitted). In order to

to the plaintiff, did not establish that McSweeney fired only once, and because RSA 507-B:5 provides: “No governmental unit shall be held liable in any

165 N.H. 186, 190 (2013).

Sanbornton (Town), for damages, alleging, among other claims, a battery claim The plaintiff sued McSweeney and his employer, defendant Town of answer the certified question, it is necessary to engage in statutory

doubts exist as to the constitutionality of a statute, those doubts must be it is susceptible to a construction rendering it constitutional.” Id. “When omitted). “As such, a statute will not be construed to be unconstitutional when and substantial conflict exists between it and the constitution.” Id. (quotation McSweeney’s motion because the evidence, viewed in the light most favorable “In other words, we will not hold a statute to be unconstitutional unless a clear Assoc. of N.H. v. State of N.H., 161 N.H. 730, 735 (2011) (quotation omitted). The federal district court’s order provides the following facts. See Eng

completing the field sobriety test.

defendants sought summary judgment on both claims. The court denied

We respond in the affirmative.

asserts that he used it only once when the plaintiff began to run away before Mark McSweeney, used his stun gun on him “multiple times.” McSweeney test. The plaintiff, Dennis G. Huckins, alleges that the police officer, defendant arises from a municipal police officer’s use of a stun gun during a field sobriety Khabbaz v. Comm’r, Social Sec. Admin., 155 N.H. 798, 799 (2007). This case p. 3 Ocasio v. Fed. Express Corp., 162 N.H. 436, 448 (2011). “The right to a

against arbitrary and discriminatory infringements upon access to courts. recovery.” We squarely rejected a similar argument in Ocasio. In that case, the McSweeney, that remedy is “constitutionally inadequate” and “is a hollow Article 14 because, although he may maintain a personal injury action against

challenges must fail. See id. constitutional as applied to the plaintiff, then, by necessity, both of his The purpose of this provision is to make civil remedies available and to guard

The plaintiff contends that RSA 507-B:2 and RSA 507-B:5 violate Part I, denial; promptly, and without delay; conformably to the laws. without being obliged to purchase it; completely, and without any

to his employer even though the employer was immune from liability pursuant

We begin by addressing his as-applied challenge because, if the statutes are

person, property, or character; to obtain right and justice freely,

impairments of the right of access.” Petition of Goffstown Educ. Support Staff,

plaintiff argued that the trial court erred by allowing the jury to apportion fault

unconstitutional both facially and as applied to the circumstances of this case.

162 N.H. at 448 (quotation omitted). all injured persons will receive full compensation for their injuries.” Ocasio, having recourse to the laws, for all injuries he may receive in his 150 N.H. 795, 803 (2004). However, Part I, Article 14 “does not guarantee that Every subject of this state is entitled to a certain remedy, by

remedy is not a fundamental right, but is relative and does not prohibit all

The plaintiff argues that RSA 507-B:2 and RSA 507-B:5 are

of the case.” Id. (quotation omitted). We note first the scope of the plaintiff’s constitutional challenge. See

Act would be valid.” Id. (quotation omitted). “[A]n as-applied challenge, on the Part I, Article 14 of the State Constitution provides: challenger must establish that no set of circumstances exists under which the

violates the Constitution in all, or virtually all, of its applications.” Id.

applications, but contends that it is not so under the particular circumstances other hand, concedes that the statute may be constitutional in many of its maintenance or operation of all motor vehicles, and all premises.” fault or the fault attributable to it, arising out of the ownership, occupation,

(quotation omitted). “To prevail on a facial challenge to a statute, the

attack of a legislative judgment, an assertion that the challenged statute challenge, or both.” Id. (quotation omitted). “A facial challenge is a head-on constitutionality of a statute by asserting a facial challenge, an as-applied State v. Hollenbeck, 164 N.H. 154, 158 (2012). A party “may challenge the and with like protection and without discrimination.” Appeal of Silverstein,

p. 4 may appeal to the courts both for relief and for defense under like conditions

jurisprudence and our obligation to construe statutes to be constitutional if at

an equal protection clause in that it implies that all litigants similarly situated

and those injured by a State employee’s intentional tort. Given our prior the treatment of plaintiffs injured by a municipal employee’s intentional tort State Constitution, we have previously held that Part I, Article 14 “is basically However, the plaintiff’s argument erroneously presumes a difference in before us. Although the certified question cites only Part I, Article 14 of the State employees. The defendants argue that this question is not properly

engaging in a single analysis. See, e.g., City of Dover v. Imperial Cas. &

tortfeasor in this case, McSweeney. Accordingly, like the plaintiff in Ocasio, the

protection argument is properly before us. treatment of plaintiffs injured by municipal employees and those injured by

alleged violations of a litigant’s rights to a remedy and to equal protection by statutory provision); State v. City of Dover, 153 N.H. 181, 183, 192-93 (2006) school district and could purchase prior service credits under a different

Id. at 449; see Petition of Goffstown Educ. Support Staff, 150 N.H. at 801, 803 statutory or common law rights to bring a direct claim against the alleged

answering the certified question, we agree with the plaintiff that his equal constitutional right to equal protection because they result in different Indemn. Co., 133 N.H. 109, 116-20 (1990). Accordingly, for the purposes of The plaintiff also contends that RSA 507-B:2 and RSA 507-B:5 violate his

163 N.H. 192, 201 (2012) (quotation omitted). Moreover, we have addressed

certain services when the staff potentially had equitable remedies against the

“suit against a third party defendant who bears responsibility for his injuries.” matter, RSA 507-B:2 and RSA 507-B:5 do not infringe upon the plaintiff’s could obtain relief through the State’s lawsuit). Similarly, in the instant not bring their suits concerning methyl tertiary butyl ether contamination, they

responsible for them – here, McSweeney. legal recourse to recover damages for his injuries from the party allegedly New Hampshire Constitution. Like the plaintiff in Ocasio, the plaintiff here has because they could not rely upon a specific statute to “buy-back” credits for plaintiff in this case has not been deprived of his right to a remedy under the

the plaintiff of his right to seek other relief for his injuries, including bringing

ruled that their right to a remedy was not denied because, although they could (assuming that municipalities have a constitutional right to a remedy, court to a federal law. Id. at 439, 440-41. In affirming the trial court’s decision, we

(school support staff were not deprived of their right to a remedy merely

the statute under which fault had been apportioned, as applied, did not deprive him of his constitutional right to a remedy. Id. at 448-49. We explained that held that the plaintiff’s inability to recover from his employer did not deprive that they comply with the State Constitution, see State Employees’ Assoc. of p. 5 In light of our obligation to construe RSA 507-B:2 and RSA 507-B:5 so

RSA 541-B:19, I(d).

of the employee for the state. that the acts complained of were within the scope of official duties

Thus, so construed, RSA 507-B:2 and RSA 507-B:5 do not result in different complained of, that his conduct was lawful, and provided further

reasonable belief in the lawfulness of the disputed act. Id. at 564-65. “[I]n

immunity to the State for any intentional tort committed by a State employee. under the same terms and conditions as RSA 541-B:19 provides sovereign claim reasonably believes, at the time of the acts or omissions municipalities for any intentional tort committed by a municipal employee lawfulness of their conduct.” Id. N.H., 161 N.H. at 735, we conclude that they provide immunity to

committed by government employees when those torts are not grounded on a

On the other hand, under our prior cases, it is unconstitutional for the law. See City of Dover, 133 N.H. at 115 (addressing municipal immunity);. . . provided that the employee whose conduct gives rise to the acting under a reasonable belief that the offending conduct was authorized by [a]ny claim arising out of an intentional tort, including . . . battery government officials or employees who act under a reasonable belief in the compelled to expose [themselves] to liability for intentional torts committed by for personnel,” neither the State nor its municipalities are “constitutionally enacted RSA 541-B:19 (2007), under which the State has sovereign immunity prevails.” Id. at 565. Consistent with our jurisprudence, the legislature such instances, the citizen’s constitutional right to the redress of injuries

State to immunize itself or its municipalities from liability for intentional torts

municipalities from liability for intentional torts by governmental employees

564. “Given the societal importance of maintaining vigilant government would impair [government] functioning.” Opinion of the Justices, 126 N.H. at discourage diligent service on the part of [government] personnel and thus all possible, see State Employees’ Assoc. of N.H., 161 N.H. at 735, we conclude municipalities in this way “because unbridled liability exposure . . . would State). It is constitutional to circumscribe the liability of the State and Opinion of the Justices, 126 N.H. 554, 564-65 (1985) (addressing immunity of

protection guarantee is violated when the State immunizes itself and its Our prior cases establish that neither Part I, Article 14 nor the equal

that no such difference exists. p. 6 R e m a n d e d .

necessarily are also facially constitutional. See Hollenbeck, 164 N.H. at 158; Because the statutes are constitutional as applied to the plaintiff, they

th[is] plaintiff[ ], the facial challenge fails as well.’”). Accordingly, for the under which the Act would be valid. By finding the statute valid as applied to

Town concerns McSweeney’s alleged battery, which is an intentional tort. or the Town. Moreover, the plaintiff’s only vicarious liability claim against the

a facial challenge, Tooley ‘must establish that no set of circumstances exists

DALIANIS, C.J., and HICKS and BASSETT, JJ., concurred.

because the plaintiff has alleged no negligence claim against either McSweeney

the indictment and continues the argument on appeal. However, to prevail on Dichiara, 165 N.H. at ___, 82 A.3d at 228. The plaintiff argues that our

negligence. We have no occasion to reach this question in the instant matter

(“Tooley also made a facial challenge to [the statute] in his motion to dismiss occupation, maintenance, or operation of a motor vehicle or premises.” United States v. Tooley, 468 Fed. Appx. 357, 359 (4th Cir. 2012) (per curiam) there is a nexus between the claim and the governmental unit’s ownership, provides an exception to municipal immunity for negligence claims “only when

B:2 and RSA 507-B:5 in Dichiara v. Sanborn Regional School District, 165 N.H. At oral argument, the plaintiff challenged our interpretation of RSA 507-

plaintiffs injured by State employee intentional torts. injured by municipal employee negligence and those injured by State employee treatment of plaintiffs injured by municipal employee intentional torts and of statutory construction in Dichiara results in different treatment of individuals

___, ___, 82 A.3d 225, 228 (2013). In that case, we held that RSA 507-B:2