2014-0650, Appeal of Town of Salem & a.; 2014-0736, Town of Salem & a. v. Local Government Center, Inc. & a.

Health Trust, LLC; and LGC - HT, LLC. and orally), for respondents Health Trust, Inc.; Local Government Center Ramsdell Law Firm, PLLC, of Concord (Michael D. Ramsdell on the brief

New Ham pshire Municipal Association Property - Liability Trust, Inc. for respondent s Local Government Center Property - Liability Trust, LLC and McLane, Graf, Raulerson & Middleton, P.A., of Manchester, filed no brief,

petitioner New Hampshire Bureau of Securities Regulation. Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester, filed no brief, for

(New Hampshire Bureau of Securities Regulation) APPEAL OF TOWN OF SA LEM & a.

2014 - 0 736 No s. 2014 - 0 6 50

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

defendant in the plaintiffs’ complaint. Health Trust, LLC, which, although not named in the case caption, was identified as a party The motion to dismiss noted that it was also submitted on behalf of Local Government Center 

in part, and remand. respondents and the civil action defendants as LGC. We affirm in part, vacate reference, we will, where applicable, collectively refer to the administrative consolidated these related civil and administrat ive cases on appeal. For ease of Center Real Estate, Inc. (collectively, the civil action defendants). We Government Center Property - Liability Trust, LLC; and Local Government LLC; LGC - PLT, LLC; Local Government Center Healthtrust, Inc.; Local Inc.; New Hampshire Municipal Association, LLC; Health T rust, Inc.; LGC - HT, Center, Inc.; New Hampshire Municipal Association Property - Liability Trust, motion to dismiss filed by, among others, defendants Local Government  plaintiffs) appeal an order of the Superior Court (McNamara, J.) granting the In the second appeal, the Towns and the City of Concord (collectively, the

respondents). See RSA 5 - B:5, I(c) ( p. 2 2013). Center Workers’ Compensation Trust, LLC (collectively, the administrative Trust, Inc. (Property Liability Trust); LGC - HT, LLC; and Local Government Liability Trust, LLC; New Hampshire Municipal Association Property - Liability Government Center Health T rust, LLC; Local Government Center Property - Government Center, Inc.; Lo cal Government Center Real Estate, Inc.; Local administrative action brought by the Bureau against: Health Trust; Local surplus by one of the respondents, Health Trust, Inc. (Health Trust), in an share in the distribution of approximately $17.1 million in excess earnings and Hampshire Bureau of Securities R egulation (Bureau) denying their motion to Plainfield (the Towns) appeal an order of the presiding officer of the New Temple, Auburn, Bennington, M eredith, Northfield, P eterborough, and HICKS, J. In the first of these consol idated appeals, the Town s of Salem,

and orally), for the defendant s. Ramsdell Law Firm, PLLC, of Concord (Michael D. Ramsdell on the brief

Concord. Danielle L. Pacik, deputy city solicitor, on the brief), for plaintiff City of City Solicitor’s Office, of Concord (James W. Kennedy, city solicitor, and

Meredith, Northfield, Peterborough, and Plainfield. the brief and orally), for the Towns of Salem, Temple, Auburn, Bennington, Douglas, Leon ard & Garvey, P.C., of Concord (Richard J. Lehmann on p. 3 3

the excess funds were ordered to be distributed to current members. Liability Trust’s current members. The parties failed to reach agreement, and agreement, the order required distribution only to Health Trust’s and Property any time after June 10, 2010; however, if those parties failed to reach an distribute excess funds to members that had participated in the program at and the administrative respondents to enter into an “agreed - upon plan” to programs on August 16, 2 0 1 2. The August 16 Order also directed the Bureau respectively, to those political subdivisions that were members of those Liability Trust return excess funds of $ p. 3 33.2 million and $3.1 million, S ee id. at 7 9 8. The August 16 Order required that Health Trust and Property

excess insurance to the participating political subdivisions. required for administration, claims, reserves, and purchase of (c) Return all earnings and surplus in excess of any amounts

. . . .

I. Each pooled risk management program . . . shall:

provides, in pertinent part: violated severa l provisions of RSA chapter 5 - B, including RSA 5 - B:5, I(c), which 16, 2012 (the August 16 Order) rul ing that the administrative respondents had Gov ’ t Ctr., 165 N.H. at 797. The presiding officer issued an order on A ugust respondents had violated RSA chapter s 5 - B and 421 - B. See Appeal of Local prompted by a staff petition filed by the Bureau alleging that the administrative In 2011, the secretary of state commenced an adjudicative proceeding

several of the def endants. municipalities that were members of pooled risk management programs run by offering products and services governed by RSA 5 - B.” The plaintiffs are that they, along with the other defendants, “are companies and corporations LLC; LGC - PLT, LLC; and Local Government Center Health t rust, In c. — alleg ing named three additional defendants — New Hamps hire Municipal Association, Supp. 2015). The superior court action from which the second appeal arises 5 - B. See Appeal of Local Gov ’ t C tr., 165 N.H. at 79 p. 4 4 - 96; RSA ch. 5 - B (201 p. 3 3 & the operation of pooled risk management programs pursuant to RSA chapter only as necessary. Generally, those respondents are or have been involved in them, are described in Appeal of Local Government Center and repeat ed here as the factual and procedural background of th e administrative action against the relationships between and among, the respondents in that appeal, a s well matter before us in Appeal of Local Government Center. The identities of, and challenging the administrative order, involves subsequent proceedings in the 165 N.H. 790 (2014), or appear in the record before us. The first appeal, were recited by us in the related case of Appeal of Local Government Center, The following facts were found by the tria l court or the presiding officer, 4

tests the facts in the [complaint] against the applicable law.” Id. “[W] e will light most favorable to [them], . . . [and] then engage in a threshold inquiry that [plaintiffs’] pleadings are true[,] . . . constr ue all reasonable inferences in the 167 N.H. 125, 127 (201 p. 4 4). “We assume that the facts set forth in the susceptible of a construction that would permit recovery.” In re Estate of Mills, is whether the all egations in the [plaintiffs’] pleadings are reasonably reviewing the trial court’s grant of a motion to dismiss, our standard of review We first review the trial court’s dismissal of the plaintiffs’ civil action. “In

now appeal. order . . . to make a distribution of the funds Plaintiffs seek.” The plaintiffs action may not proceed because LGC has complied with a final administrative the plaintiffs have a contractual right to the payment of excess funds, “this a fforded by RSA 5 - B: p. 4 4 - a “are intended to be exclusive in nature”; and (2) even if court granted. The trial court concluded that: (1) the remedies for overcharges duty. The civil action defendants filed a motion to dismiss, which the trial for breach of contract and implied - in - fact contract, a nd breach of fiduciary The plaintiffs’ amended complaint plead ed, among ot her things, claims

State. apart from any administrative action pursued by the Secretary of justice pursuant to their common law rights, wholly separate and these nine plaintiff communities, they are now forced to seek recovery. . . . [S]ince no monies have yet flowed back from LGC to C ourt to award money damages pursuant to common law for their unde r the administrative order, the plaintiffs hereby request the A s a result of the manner by which payment was made

they did not participate in the distribution of excess funds. The y alleged: various times, but were no longer members o n August 16, 2012. Therefore, of pooled risk management programs run by the civil action defendants at superior court. Their amended complaint alleged that they had been members Meanwhile, the plaintiffs filed suit against the c ivil action defendants in

now appeal. funds. Their motio n proposing such a distribution was denied, and the Towns Trust, in the further distribution of approximately $17.1 million in excess to be heard on their proposal to participate, as former members of Health order. During that proceeding, the Towns were permitted to intervene in order were resolved by a consent decree incorporated into the presiding of ficer’s noncompliance with the August 16 Order. The issues related to that motion for entry of def ault order against the administrative respondents alleging proceedings. See id. at 809, 810, 81 p. 4 4. Thereafter, the Bureau filed a motion part, vacated portions of the order not relevant here, and remanded for further court. See Appeal of Local Gov ’ t Ctr., 16 p. 5 5 N.H. at 790, 793 - 94. We affirmed in The admi ni strat ive respondents appealed the August 16 Order to this 5

in the statute,” the plaintiffs argue, “does the text express that the Secretary of exclusivity of the secretary of state’s authority and jurisdiction.” “At no point fails to account for the emphasized terms, which “act as limits on the penalties for violations.” They then contend that the trial court ’s interpretation exclusive right to bring administrative actions, investigate, and impose The plaintiffs argue that “[t]he statute merely refers to the Secretary’s

RSA p. 5 5 - B:4 - a (Supp. 2015).

(2) Rescission, restitution, or disgorgement.

(1) Fines.

chapter, in cluding but not limited to: (b) To investigate and impose penalties for violations of this

(a) To bring administrative actions to enforce this chapter.

state shall have exclusive authori ty and jurisdiction: I. Notwithstanding any other provision of law, the secretary of

The statute provides, in relevant part:

Appeal of Local Gov ’ t Ctr., 16 p. 5 5 N.H. at 804 (citations omitted).

legislature did not see fit to include. what the legislature might have said or add language t hat the legislative intent from the statute as written and will not consider according to its plain and ordinary meaning. We interpret the statute itself, and, if possible, construe that language the statute considered as a whole. We first look to the language of arbiter of the intent of the legislature as expressed in the words of novo. In matters of statutory interpretation, we are the final Statutory interpretation is a question of law, which we review de

this issue requires us to engage in statutory interpretation. in the Secretary of State,’” and provides exclusive remedies therefor. Resolving in finding “that RSA p. 5 5 - B:4 - a ‘vests exclusive jurisdiction relating to overcharges law claims. We first address the plain tiffs ’ conten tion that the trial court erred compliance with the August 16 Order immunizes it from the plaintiffs’ common 5 - B:4 - a as abrogating their common law claims; and (2) ruling that LGC’s The plaintiffs argu e that the trial court erred in: (1) construing RSA

p. 6 6 p. 5 58 (2003). a basis for legal relief.” Estate of Ireland v. Worcester Ins. Co., 149 N.H. 656, uphold the granting of the motion to dismiss if the facts pled do not constitute 6

conclude that the plaintiffs’ contract claim falls within the ambit of the provisions through breach of contract actions in court. Accordingly, we statutory provisions within their c ontracts and then privately enforcing such the legislative grant of exclusive enforcement jurisdiction by incorporating chapter. Were we to hold otherwise, parties could create an end - run around and cannot exist alongside the administrative mechanism created in that funds as alleged by the plaintiffs is inextricably entwined with RSA chapter 5 - B W e hold that a common law contractual claim for the return of surplus

agreements. remain s is the claim for bre ach of the participation and membership we decline to consider it. See In re James N., 157 N.H. p. 6 690, 693 (2008). What return surplus funds during the administrative proceedings — and therefore in th eir brief the second alleged breach of fiduci ary duty claim — failure to the secretary’s exclusive jurisdiction. The plaintiffs did not adequately address are, by their terms, attempts to enforce the statute, and thus plainly fall within an implied - in - fact contract and a violation of RSA 5 - B:5 (emphasized above) funds during the administrative proceedings against them. The claims alleging in violation of RSA 5 - B:5” (emphasis added); and (2) by failing to return surplus needed for administration, claims, reserves, and purchase of excess insurance, (1) “failing to return to the plaintiffs, the amounts of surplus and earnings not relationship with the plaintiffs and that they breached their fiduciary duties by: trustees of Property Liability Trust and Health Trust, stood in a fiduciary surplus funds on an annual basis.” C ount II alleged that the defendants, as added), and that the defendants breached those contracts by “failing to return contract by operation of the governing statute, RSA chapter 5 - B” (emphasis and membership agreements between the parties, as well as the implied - in - fa ct contractual relationship with the LGC defendants, due both to the participation Count I in the plaintiffs’ complaint alleged that “[t]he plaintiffs were in a

plaintiffs’ claims fall within that realm, we examine thei r amended complaint. of appeal to this court. See RSA 5 - B:4 - a, VIII. To determine whether the and provide instead an administrative enforcement mechanism with the right expresses the intention to supplant any common law claim within that realm or disgorgement.” RSA 5 - B:4 - a. We conclude that this language clearly address violation of its provisions by means including “[r]escission, restitution, “exclusive authority and jurisdiction” to enforc e RSA chapter 5 - B and to The plain language of RSA 5 - B:4 - a grant s the secretary of state

St. Mary’s Bank, 1 p. 6 64 N.H. 649, 655 (2013) (quotation omitted). common law unless the statute clearly expresses such an intention.” Case v. upon the doctrine that this co urt “will not construe a statute as abrogating the outside of an administrative setting.” In support of this argument, they rely corporations to bring common law or statutory actions in a court of law, Sta te’s exclusive administrative power abrogates the right of individuals or p. 7 7

upon LGC’s compliance with an administrative order. not address the plaintiffs’ challenge to the court’s alternative rulings based 5 - B:4 - a provide s the exclusive remedy for the plaintiffs’ claims, we also need legislative intent.”). Because we uphold the trial court’s ruling that RSA and unambiguous, we need not look beyond it for further indication of Bank v. Grimes, 16 p. 7 7 N.H. 536, 537 (2015) (“If the language of a statute is plain however, we will not search further for its meaning. See JP Morgan Chase RSA 5 - B:4 - a. Having found the statute’s plain language unambiguous, The plaintiffs also cite legislative history to support their interpretation of

are. state in the particular statute at issue here — RSA 5 - B:4 - a. We hold that they foreclosed by the legislature’s grant of exclusive jurisdiction to the secretary of determine whether the particular causes of action alleged in this case are regulation and co mmon law causes of action may coexist as our task is to civil action”). We need not search for other contexts in which government forfeiture or other remedy authorized by law to be recovered or enforced in a suspend, or otherwise affect any right or liability for damages, penalty, RSA 651: 65 (200 p. 7 7) (stating, in part, that “[t]his subdivision do es not bar, reserves the right of crime victims to seek compensation via civil action. See jurisdiction” to the secretary o f state, RSA 5 - B:4 - a, RSA 651:65 explicitly Unlike the statutory scheme here, wh ich grants “exclusive authority and right of crime victims to seek compensation through the civil justice system.” pay restitution pursuant to RSA 651:61 - a et seq. . . . does not foreclose the example: that “the power of the government to order a criminal defendant to causes of action coexist in a wide range of contexts.” They cite a single The plaintiffs also assert that “[g]overnment regula tion and common law

breaches of those agreements could not be remedied through private lawsuit s. services such as rental space or office supplies, and nothing herein holds that by that chapter. Such programs could, for instance, contract for goods and sued upon — all manner of private contracts unrelated to the matters governed 5 - B contemplates that pooled risk management programs may make — and be Our holding above is not inconsistent with this provision. RSA chapter

RSA 5 - B:6, II (2013). property; and borrow money, contract debts, and pledge assets in its name.” a body corporate, may sue or be sued; make contrac ts; hold and dispose of real provides that “[a]ny such program operating under this chapter, whether or not scheme may be sued by private parties.” They cite RSA 5 - B:6, II, which scheme clearly anticipates that risk pools created pursuant to that statutory The plaintiffs nevertheless argue that “[t]he RSA chapter 5 - B statutory

chapter 5 - B. secretary of state’s exclusive jurisdiction and is remediable solely through RSA p. 8 8

funds. See, e.g., Pools by Murphy v. Dept. of C onsumer Pro., p. 8 841 A.2d 292, wrongfully held funds to the parties from whom the defendants obtained those Either of the remedies purportedly used could involve repayment of the

provisions as restitution or disgorgement pursuant to RSA 5 - B:4 - a, VII.” or property in the alternative, this order requires compliance with these 16 Order states that “[t]o the extent that this order requires the return of funds “[r]escission, restitution, or disgorgement.” RSA 5 - B:4 - a, I(b)(2). The August statute’s provisions — here violation of RSA 5 - B:5, I(c) — by means includ ing authorizes the secretary of state to impose penalties for violations of the LGC defendants violated; it does not circumscribe the remedy. RSA 5 - B:4 - a error in the presiding officer’s reasoning. RSA 5 - B:5, I(c) is the provision the they were ‘currently participating members.’” This argument points out the have a right to the excess compensation that was withheld from them while interpreted to mean only currently participating members, the plaintiffs still The plaintiffs argue that “[e]ven if the term ‘participating members’ is

indicate s . . . tense. That tense is the present tense. A participle, i.e. a verb used as an adjective, in this instance present [partic iple] attached to its subject, “p olitical subdivisions.” reasonable interpretation is that the word “participating” is a word’s ordinary meaning in interpreting the statute, the more construction considering the statute as a whole and assigning a participating political subdivisions. Applying rules of statutory “participating political subdivi sions,” not any past or former management program. RSA 5 - B: 5, I(c) provides only for returns to make provision for any past or former member of a pooled risk The “Pooled Risk Management Program” statute does not

provision as follows: consistent with RSA 5 - B:5, I(c), the presiding officer then interpreted that that the August 16 Order directed that the funds be returned to members foundation in law” for the plaintiffs’ claim to a share of surplus funds. Noting bec a use it is contrary to RSA 5 - B: 5, I. The presiding officer found “little The plaintiffs first argue that the presiding officer’ s decision i s unlawful

N.H. at p. 8 80 3. deemed prima facie lawful and reasonable.” Appeal of Local Gov ’ t Ctr., 165 unreasonable.” RSA 541:13 (2007). “The presiding officer’s findings of fact are a clear preponderance of the evidence before [us], that such order is unjust or presiding officer’s decision “except for errors of law, unless [we are] satisfied, by pursuant t o RSA 541”). Accordingly, we will not set aside or vacate the “[d]ecisions of the secretary of state may be appealed to the supreme court review is set forth in RSA 541:13. See RSA 5 - b:4 - a, VIII (providing that the ir request to participate in the distribution of excess funds. Our standard of We now t urn to the Towns’ appeal from the presiding officer ’s denial of p. 9 9

DALIANIS, C.J.