2020-0536, Petition of Whitman Operating Co., LLC d/b/a Camp Walt Whitman & a.

and Preservation (GAP) Fund. We affirm. deny their applications for money fr om the New Hampshire General Assistance Office for Emergency Relief and Recovery (the Office for Emergency Relief), to (collectively, the Camps), challenge a decision of the respondent, the Governor’s Wic osuta, and Winaukee Operating Co., LLC d/b/a Camp Winaukee d/b/a Camp Walt Whitman, Wicosuta Operating Co., LLC d/b/a Camp HANTZ MARCONI, J. The petitioners, Whitman Operating Co., LLC

Emergency Relief and Recovery. attorney general, on the brief and orally), for the Governor’s Office for Office of the Attorney General, (Laura E. B. Lombardi, senior assistant

orally), for the petitioners. Lamontagne and Matthew J. Saldaña on the brief, and Ovide M. Lamontagne Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Ovide M.

(Governor’s Office for Emergency Relief and Recovery)

No. 2020 - 0536 Governor’s Off ice for Emergency Relief and Recovery

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e mail at the following address: reporter@courts.state.nh.u s. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

tens of millions in cash liquid assets. owners have tens of millions in net worth and more significantly, submitted . . . indicated that several of the larg est percentage this pandemic crisis. Of note, the financials [the Camps] not have other resources to more likely enable them to weather the State targeted the limited aid available to those entities that do hard decisions about criteria for providing funding. As a result, awards from the GAP Fund. The State has had to make many from COVID. That alone, however, was not the basis for the We understand that [the Camps] may have had a financial impact

address the Camps’ concerns about why they did no t receive awards: “additional information regarding the GAP Fund,” which it hoped would rehearing or appeal under RSA 541.” Nonetheless, the O ffice provided deci sions under the Governor’s emergency powers and are not subject to receive awards and the proper amounts from the CARES Act funds are . . . declined the request. The O ffice explained that “[t]he determination of who will Rule 10 and RSA 541:4.” On October 5, p. 2 2020, the Office for Emergency Relief “pursuant to the requirements set forth in New Hamp shire Supreme Court Shortly thereafter, the Camps submitted a request for rehearing

“[t]he most common reasons” for denying an application. stated that “having high liquid assets both personal and business” was one of The form letters notifying the Camps that their applications had been d enied the end of July p. 2 2020. Their applications were denied on September 10, 2020. impacted by the COVID - 19 pandemic.” The Camps applied for GAP funding at financial relief to New Hampshire busine sses and nonprofit organizations $30 million of CARES Act funds for the GAP Fund “to provide emergency In July 2020, the Governor authorized the allocation and expenditure of

relief funds.” his final approval “for a llocation and expenditure [of] . . . CARES Act emergency recommendations and makes any changes he deems necessary before giving the executive order, the Governor reviews the Office for Emergency Relief’s allocation and expenditure of CARES Act emergency relief funds.” Pursuant to to work with the Office for Emergency Relief to “develop recommendation s for establishes a “Legislative Advisory Board” and a “Stakeholder Advisory Board” Act). See Pub. L. No. 116 - 136, 134 Stat. p. 2 281 (2020). The executive order the Coronavirus Aid, Relief, and Economic Security Act of 2020 (the CARES the management and expenditure of . . . emergency relief funds received under” Relief “to assist the Governor and Legislature with and direct State agencies on COVID - 19 pandemic. The executive order empowers the Office for Emergency Emergency Relief pursuant to an April 2020 executive order related to the The relevant facts follow. The Governor established the Office for

I. Facts p. 3 3

Relief correctly observes, and as we have previously held, we have no authority respect to the grant[s] at issue here.” However, as the Office for Emergency internal appeal process which [the Office for Emerg ency Relief] applied with Relief].” The Camps assert that “[t]his is particularly true given the constrained meaningful avenue of appeal from decisions of [the Office for Emergency Emergency Relief], . . . RSA 541 should apply to provide aggrieved parties a an organic statute construing the powers and responsibilities of [the Office for aware of any such statute. Instead, the Camps argue that “in the absence of decision of the Office for Emergency Relief under RSA chapter 541. Nor are we The Camps do not identify any statute authorizing an appeal of a

law.” Id. (quotation omitted). statute, an appeal under the provisions of chapter 541 is not authorized by (quotation omitted). “Unless some reference is made to chapter 541 in [a] given admi nistrative agency in the state.” Appeal of Rye Sch. Dist., 17 p. 3 3 N.H. at 757 chapter 541 do not provide an appeal from the determination of every phrase “only when so authorized by law” to mean “t hat the provisions of Appeal of Rye Sch. Dist., 173 N.H. 753, 757 (2020). We have interpreted the RSA chapter 541 only “[w] hen so authorized by law.” RSA 541:2 (2021); see court under RSA chapter 541. Under RSA 541:2, appeals may be taken under We first cons ider whether the Camps’ claims may be brought in this

decide this case as a petition for a writ of certiorari. jurisdiction under RSA chapter 541, we have subject matter jurisdiction to or as a petition for a writ of certiorari. We conclude that although we lack either as an appeal from an administrative proc eeding under RSA chapter 541 (2018). The Camps contend that we have jurisdiction to decide their case conduct of persons or the status of things.” Appeal of Cole, 171 N.H. 40 p. 3 3, 408 case and the type of reli ef sought: the extent to which a court can rule on the jurisdiction. “Subject matter jurisdiction is jurisdiction over the nature of the address the Office for Emergency Relief’s assertion that we lack subject matter Before considering the merits of the Camps’ appellate arguments, we

A. Subject Matter Jurisdiction

II. Analysis

petition for a writ of certiorari under Supreme Court Rule 11. on November 20, 2020, under Supreme Court Rule 10 or, alternati vely, as a the O ffice would not reopen “that decision.” The Camps filed the instant appeal October 5 “response to [the Camps’] original request for rehearing is final,” and October 21 email that, after carefully consid ering the Camps’ request, its applications for GAP funding. The Office for Emergency Relief responded in an Pursuant to RSA 5 p. 4 41:4,” asking the Office for Emergency Relief to grant their Thereafter, the Camps submitted a “Second Request for Rehearing 4

board could exercise an unchallengeable ve to over even the most meticulous, explained that certiorari review was necessary because, otherwise, “a planning whether there is an error correctable by the court.” Id. at 318. We further that “[o]n a sufficient peti tion, the question is less the form of the petition than to accept a subdivision application. DHB, 152 N.H. at 317 - 18. We explained we concluded that it was available to review the planning board’s decision not DHB, for i nstance, even though the plaintiff had not sought a writ of certiorari, writ of certiorari.” Sinkevich v. Nashua, 97 N.H. 262, 26 p. 4 4 (1952). Thus, in Our cases have allowed “some expansion of the conventional scope of the

528, 532 (2007). the discretion of the court.” Petition of Chase Home for Children, 155 N.H. remedy, usually available only in the absence of a right to appeal, and only at corporations, and to individuals”). “Review on certiorari is an extraordinary supreme court “may issue writs of certiorari . . . to other courts, to Comm’n, 119 N.H. 272, 277 (1979); see RSA p. 4 490:4 (2010) (providing that the Our certiorari jurisdict ion is confirmed by RSA 490:4. Melton v. Personnel review a planning board’s decision not to accept a subdivision application). 152 N.H. 314, 317 - 18 (2005) (holding that review on certiorari was available to judicial acts and decline to do so in this case. See DHB v. Town of Pembroke, We have not previously limited certiorari review to judicial or quasi -

them.” (quotation omitted)). considering such evidence and arguments as the parties choose to lay before notify, and hear the parties, and can only decide after weighing and N.H. 31 p. 4 4, 330 (2006) (“An act is judicial in nature if officials are bound to Camps’ applications for GAP funding. See Appeal of Town of Bethlehem, 154 was not acting in a judicial or quasi - judicial capacity when it denied the for Emergency Relief asserts that we lack jurisdiction here because the O ffice tribunal (but not administrative, polit ical, or legislative decisions)”). The Office to correct substantial errors of law committed by a judicia l or quasi - judicial (observing, in dicta, that “[c]ertiorari is a limited procedure which may be used Botolph Citizens Committee v. BRA, 705 N.E.2d 617, 621 (Mass. 1999) administrative body acts in a judicial or quasi - judicial capacity. See St. Emergency Relief contends that certiorari review is available only when an jurisdictions concerning their common law writs of certiorari, the Office for case as a petition for a writ of certiorari. Relying upon law from other We next consider whether we have original jurisdiction to decide this

applications for GAP funds under that chapter. no jurisdiction to review the Office for Emergency Relief’s denial of the Camps’ authorizes an appeal under RSA chapter p. 5 5 p. 4 41 in these circumstances, we have within thirty days after an application for rehearing is denied). As no statute could not waive the requirement in RSA 541:6 that an appeal be brought 541. See Appeal of Carreau, 157 N.H. 122, 123 - 24 (2008) (holding that we to create equitable exceptions to the jurisdictional requirements of RSA chapter 5

governmental decisionmaker, and the relationship of the classification to its apparently based rat ionally may have been considered to be true by the plausible policy reason for [it], the. . . facts on which the classification is We will uphold a classification under rational basis review “if there is a

the rational basis test applies. we employ the rational basis test. Id. Here, the Camps implicitly agree that Sandra H., 1 p. 5 50 N.H. 634, 637 - 38 (2004) (quotation omitted). In all other cases, “important substantive right s” are subject to intermediate scrutiny. In re fundamental right s are subject to strict scrutiny, and classifications involving Generally, classifications based upon suspect classes or affecting

intermediate scrutiny, and the rational basis test. Id. The possible review standards are commonly known as strict scrutiny, scope of the State - created classificati on and the individual rights affected. Id. we must first determine the standard of review by examining the purpose and Id. In considering an equal protection challenge under our State Constitution, but must reasonabl y promote some proper object of public welfare or interest. N.H. 4 p. 5 59, 462 (2015) (quotation omitted). A classification cannot be arbitrary, similarly situated should be treated alike.” Lennartz v. Oak Point Assocs., 167 “The equal protection guarantee is essentially a direction that all persons

124 N.H. 226, 231 - 33 (1983). State Constitution and cite federal opinions for guidance only. State v. Ball, art. 2; U.S. CONST. amend. XIV. We first address their arguments under the and federal constit utional rights to equal protection. See N.H. CONST. pt. I, The Camps first argue that denying their applications violated their state

1. Equal Protection

C. Camps’ Arguments

otherwise would result in substantial injustice.” Id. exercise our p ower to grant such writs sparingly and only where to do capriciously.” Petition of Chase Home for Children, 1 p. 5 55 N.H. at 532. “We unsustainably exercised its discretion or acted arbitrarily, unreasonably or with respect to jurisdiction, authority or observance of the law or has certiorari entails examining whether the administrative body “acted illegally Our review of an administrative body’s decision on a petition for writ of

B. Standard of Review

Emergency Relief’s decision would be unreviewable. there is no statutory right of appeal and because, otherwise, the Office for it.” Id. We conclude that certiorari review is available in this case because meritorious and undeniably complete application by simply refusing to accept p. 6 6

claims: first, we determine whether the individual has an intere st that entitles We engage in a two - part analysis in addressing procedural due process

and cite federal opinions for guidance only. Ball, 124 N.H. at 231 - 33. due process. We first address their arguments under the Sta te Constitution deprived them of their state and federal rights to procedural and substantive The Camps next argue that the Office for Emergency Relief’s decision

2. Due Process

under the Federal Constitution as we reach un der the State Constitution. see id., Deere & Co., 1 p. 6 68 N.H. at 482, we necessarily reach the same decision greater protection than the State Constitution does under these circumstances, classifications.”). Because the Federal Constitution affords the Camps no overcome the presumption of rationality that applies to government dismiss for failure to state a claim, a plaintiff must allege facts sufficient to v. City of Washburn, 965 F.2d 452, 460 (7th Cir. 1992) (“To survive a motion to Emergency Relief administered the GAP Fund constitutionally. See Wroblewski insufficient, as a matter of law, to overcome the presumption that the Office for certain allegedly similarly sit uated competitors received GAP funding are they would have received GAP funding and their conclusory assertion that The Camps’ assumption that, if they had a different corporate structure,

of GAP funding received. about the recipients in the record are their names, addresses, and the amount before us includes a list of GAP Fund for - profit recipients, the only information dollars, while [the Camps] did not.” (Citation omitted.) Although the record multipl e camps, received emergency grants in the hundreds of thousands of “similarly situated competitors, including camps with ‘wealthy’ owners and/or would have been approved for GAP funding.” They further contend that They assert that if they had a different corporate structure, they “presumably liability companies “falli ng under a single[, closely - held] corporate parent.” Camps’ corporate structure. The Camps describe themselves as limited differently from similarly situated for - profit organizations based upon the The Camps argu e that the Office for Emergency Relief treated them

which might support” the classification. Id. (quotation omitted). constitutional, the Camps have the burden “to negative every conceivable basis (quotation and brackets omitted). Because the classification is presumed to preclude the assumption that it rests upon some rat ional basis.” Id. light of the facts made known or generally assumed it is of such a character as omitted). We will not “pronounce a classification unconstitutional unless in the Deere & Co. v. State of N.H., 1 p. 6 68 N.H. 460, 482 (2015) (quotation and brackets goal is not so attenuated as to render the classification arbitrary or irrational.’’ p. 7 7

component of due process provides heightened protection against government v. Hollenbeck, 164 N.H. 154, 159 (2012) (quotation omitted). “The substantive ‘liberty’ it protects includes more than the absence of physical restraint.” State “The Due Process Clause guarantees more than fair pro cess, and the

same result under both constitutions. N.H. Interschol. Ath. Assoc., Inc., 122 N.H. 484, 491 - 92 (1982), we reach the Constitution under these circumstances, see Roth, 408 U.S. at 5 p. 7 77; Duffley v. Constitution offers the Camps no greater protection than the State property right or entitlement to GAP funding. Because the Federal the Camps have failed to establish that they have a constitutionally - protected required closures.” Id. at 4189. Under these circumstances, we conclude that reimburse small businesses “the costs of business interruption caused by determine what payments are necessary” when creating a grant program to guidance explains that state and local “[g]overnments have discretion to Governments, 86 Fed. Reg. 418 2, 4183 (Jan. 15, 2021). We note that the same Coronavirus Relief Fund Guidance for State, Territorial, Local, and Tribal judgment” in disbursing CARES Act funds. U.S. Dep’t of the Treasury, States Department of Treasury instructs states to use their “reasonable language.’” In addition, they concede that the guidance issued by the United discretion. Instead, they fault the O ffice for failing to point to “‘permissive substantive predicates creating guidelines fo r the Office for Emergency Relief ’s The Camps do not identify any mandatory language or specific

(quotations omitted). B. ex rel. Vi gurs v. Patrick, p. 7 771 F. Supp. 2d 142, 165 (D. Mass. 2011) substantive predicates crea ting guidelines for the official’s decision.” Connor discretion are the repeated use of explicitly mandatory language and specific F.3d 52, 56 (1st Cir. 2013) (quotation omitted). “Two factors indicating limited more likely that benefit constitutes ‘property.’” Clukey v. Town of Camden, 717 discretion (under substantive state or federal law) to withhold a benefit, the U.S. 748, 756 (2005). “Rather, the more circumscribed is the government’s officials may grant or deny it in their discretion.” Castle Rock v. Gonzales, 545 Roth, 408 U.S. at 577. “[A] benefit is not a protected entitlement if gove rnment (1992). Rather, the person must “have a legitimate claim of entitlement to it.” 408 U.S. 564, 577 (1972); see Short v. School Admin. Unit 16, 136 N.H. 76, 81 it” and “more than a unilateral expectation of it.” B oard of Regents v. Roth, benefit, “a person clearly must have more than an abstract need or desire for To have a constitutionally - protected property interest in a government

interest i n receiving GAP funds. We disagree. The Camps contend that they have a constitutionally - protected property determine what process is due. Appeal of Nguyen, 1 p. 7 70 N.H. 23 p. 8 8, 243 (2017). him or her to due process protection; and second, if such an interest exists, we 8

benefit. It did not “pierce the corporate veil” so as to hold individual owners Here, the Office for Emergency Relief was bestowing a government

disagree. Citizens United v. Federal Election Commission, 55 p. 8 8 U.S. 310 (2010). We for Emergency Relief impermissibly “pierc[ed] the corporate veil” and violated which they were clearly eligible.” The Camps argue that by so doing, the Office finances of its individual owners t o exclude [the Camps] from GAP funding for identity and personhood of [the Camps] and instead applied the personal arbitrarily, unreasonably, and capriciously “when it disregarded the corporate Finally, the Camps contend that the Office for Emergency Relief acted

3. Arbitrary, Unreasonable, and Capricious Action

Constitution under these circumstances. See Hollenbeck, 164 N.H. at 164. Constitution offers the Camps no greater protection than does the State Constitution as we do under the State Constitution because the Federal applications for GAP funding. We reach the same result under the Federal violated their rights to substantive due process when it denied their that the Camps have failed to prove that the Office for Emergency Relief funded grants from the government.” Accordingly, on this re cord, we conclude have the ability to survive the pandemic without the assistance of tax - payer high levels of liquid assets and/or the ability to obtain private financing [would] that, as it argues, “businesses owned by extremely wealthy individuals with conclude that the Office for Emergency Relief could have rationally determined was not rationally related to this legitimate government al interest. Rather, we The Camps have failed to persuade us that denying their applications

Coronavirus Relief Fund Guidance, p. 8 86 Fed. Reg. at 4189. should be tailored to assist those businesses in need of such assistance.” businesses with the costs of business interruption caused by required closures Department’s guidance explains, “A program that is aimed at assisting small agree that this is a legitimate governmental interest. As the Treasury most in need of the assistance in order to survive the pandemic crisis.” We governmental interest in targeting “the limited aid available to the businesses Here, the Office for Emergency Relief asserts that it had a legitimate

governmental interest. Id. governmental action at issue need only be rationally related to a legitimate action at issue has the burden of proof. Id. at 163. To meet the test, the Under the rational basis test, the party challenging the governmental

interest under our rational basis standard of review.” Id. at 160. protected liberty interest at stake, we review the infringement of a right or (quotation omitted). When, as in this case, “there is no fu ndamental right or interference with certain fundamental rights and liberty interests.” Id. p. 9 9

BASSETT and DONOVAN, JJ., concurred.

532. Accordingly, we uphold that decision. applications for GAP funds. Petition of Chase Home for Children, 155 N.H. at “arbitrarily, unreasonably, or capriciously” when it denied the Camps’ upon the record submitted, that the Office for Emergency Relief acted available and the Treasury Department’s guidance, we cannot conclude, based of the speaker’s corporate identity”). In light of the limited CARES Act funds (holding that “the Government may not suppress political speech on the basis entitlement or constitutional right. See Citizens United, 558 U.S. at 365 did it deprive a corporation, on the basis of its corporate identity, a legal 635, 63 p. 9 9 - 40 (1991) (explaining the piercing the corporate veil doctrine). Nor personally liable for a corporate action or debt. See Terren v. Butler, 134 N.H.