2021-0563, Petition of New Hampshire Division for Children, Youth and Families

the petition, and we now affirm and remand. entitled to sovereign immunity under RSA chapter 541 - B (2021). We accepted it. DCYF asserts that the trial court erred in concluding that DCYF was not (Kissinger, J.) denying DCYF’s motion to dismiss a complaint brought against under Supreme Court Rule 11, seeking review of an order of the Superior Court Children, Youth and Families (DCYF), filed a petition for original jurisdiction HANTZ MARCONI, J. The petitioner, the New Hampshire Division for

Manchester (Mary E. Tenn on the brief), for the respondent. Harris on the brief and orally), and Tenn and Tenn, Professional Association, of McLane Middleton, Professional Association, of Manchester (Scot t H.

the New Hampshire Division for Children, Youth and Families. Lawrence P. Gagnon, attorney, on the brief, and Anthony J. Galdieri, orally), for general (Anthony J. Galdieri, Samuel Garland, assistant attorney general, and John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

No. 2021 - 0563 Mer rimack

https://www.courts.nh.gov/our - courts/supreme - court. 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 email 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

constitutional obstacle.” We agree with the respondent and hold that RSA otherwise exist” and, therefore, the equal protection clause “poses no a statutory private remedy against the State where a remedy does not will be barred from recourse.” DCYF contends that RSA chapter 541 - B “creates the application of [RSA 541 - B:14],. . . there would be a class of children who errors and omissions,” and, thus, “[a] bsent the incorporation of RSA 508:8 into itself “on an equal footing with pr ivate parties sued for the same or similar respondent’s position that when the State waives sovereign immunity, it places A rticle s p. 2 2, 12, and 14 of the New Hampshire Constitution. It is the be rea d into RSA 541 - B:14, IV in order for the statute to comport with Part I, bring a personal action within 2 years after such disability is removed,” must RSA 508:8, which states that “[a]n infant or mentally incompetent person may limitations period contained in RSA 541 - B:14, IV. The respondent asserts that 541 - B because the respondent filed the complaint outside of the three - year DCYF argues that it is entitled to sovereign immunity under RSA chapter

wrongful death resulting from bodily injury.” RSA 541 - B:14, IV. date of the alleged bo dily injury, personal injury or property damage or the “[a]ny claim submitted under this chapter . . . be brought within 3 ye ars of the circumstances. Id.; see also RSA 541 - B:1, II - a. The statute requires that sovereign immunity for tort claims against state agencies in certain 616 ( p. 2 2020) (DCYF). One such statute is RSA chapter 541 - B, which waives immunity. Petition of N.H. Div. for Children, Youth & Families, 173 N.H. 613, immune from suit in N ew Hampshire courts unless a statute waives that DCYF, as a state agency, enjoys the State’s sovereign immunity and is

does not apply to claims brought under RSA chapter 541 - B. petition followed. In its petition, DCYF asks us to determine that RSA 508:8 RSA 541 - B:14, IV would lead to “an absurd, unfair, and unjust result.” This and that failing to read the tolling provision into the statute of limitations in order, the trial court reasoned that RSA 508:8 operates as a tolling provision immunity, but denied the motion t o dismiss the claims against DCYF. In its court dismissed the claims against CASA as precluded by quasi - judicial of limitations in RSA 541 - B:14, IV. After a hearing on the motion, the trial IV. T he respondent objected, asserting that RSA 508:8 ( p. 2 2010) tolled the period DCYF arguing, inter alia, that the claims were time - barred by RSA 541 - B:14, Hampshire (CASA). DCYF and CASA moved to dismiss the complaint, with claims against both DCYF and the Court Appointed Special Advocates of New as parent and next friend of his children, M.M. and J.M., asserting various On October 10, 2019, the respondent filed a complaint in superior court

We viewed the certified questions in the context of Part I, A rticle 14 of the New court on whether the proposed legisl ation was constitutional. Id. at 555 - 57. Hampshire House of Representatives sought an advisory opinion from this RSA chapter 541 - B. See Opinion of the Justices, 126 N.H. at 55 6. The New to judicial concerns about the doctrine of sovereign immunity by amend ing I n 1985, the legislature enacted House Bill 440, which respon ded in part

sovereign immunity”). the present procedural and financial inadequacies of statutes relatin g to see also Brosseau, 124 N.H. at 192 (opining that the legislature must “correct the merits of the legislative response to the widespread dissatisfa ction with it.”); members of this court, and whatever future the doctrine may have depends on N.H. 294, p. 3 300 (1985) (“Sovereign immunity itself has been rejected by some address sovereign immunity in our laws. See, e.g., Tilton v. Dougherty, 126 We have also recognized that it is the legislature’s prerogative to adequately has criticized and expressed doubts as to the validity of its various aspects.”). established position of th e sovereign immunity doctrine, this court increasingly today.”); see also Opinion of the Justices, 126 N.H. at 558 (“Despite the firmly we would be disposed to reconsider the validity of the doctrine as it exists (1983) (“If and when we do reach the constitutionality of sovereign immunity, doctrine of sovereign immunity. See State v. B rosseau, 124 N.H. 184, 192 long history in this state, t his court has also been skeptical of the merits of the N.H. 340, 342 (1975) (citin g Bow v. Plummer, 79 N.H. 23 (1918)). D espite its British Crown car ried over to the States by the c ourts. S o usa v. State, 115 Indeed, t he State’s immunity from suit is traced back to the immunity of the en trenched in this jurisdiction. Opinion of the Justices, 126 N.H. at 557. State’s sovereign immunity. The doctrine of sovereign immunity is deeply We be g in our analysis with a review of the history and purpose of our

inescapable grounds.”). a statute to be constitutional and will not declare it invalid except upon Democratic Party v. Secretary of State, 174 N.H. p. 3 312, 321 (2021) (“We presume address the parties’ fully briefed equal protection arguments. See N.H. Accordingly, we elect to for go our general policy of constitutional avoidance and RSA 541 - B:14, IV would similarly violate the equal protection clause s. 554, 566 (1985); see RSA 508:4 (2010). Here, failure to read RSA 508:8 into absent the inclusion of the “discovery rule.” Opinion of the Justices, 126 N.H. protection clause s, and, in fact, would violate the equal protection clause s of limitati ons contained in RSA 541 - B:14, I V could potentially violate the equal 211 (2001). However, in Opinion of the Justices, we observed that the statute decided on a non - constitutional ground. Chapman v. Douglas, 146 N.H. 209, Ordinarily, we decline to reach constitutional issue s in a case that can b e

the New Hampshire Constitution. protection guarantees afforded to the citizenry under P art I, A rticles 2 and 12 of 508:8 must be read into RSA 5 p. 4 41 - B:14, IV in order to comport with the equal 4

N.H. 7 p. 4 48, 758 (2007). Because the right to tort recovery is an important individual rights affected. Cmty. Res. for Justice v. City of Manchester, 154 examining the purpose and scope of the S t ate - created classification and the Constitution, we must first determine the appropriate standard of review by Whe n considering an equal protection ch allenge under our State

We agree with that analysis and apply it in the case before us. protection guaranteed by the New Hampshire Constitution. See i d. at 561 - 62. to bring suit against the State must comport with the principles of equal State wa i ves its sovereign immunity, a statute restricting the ability of a party Thus, under the analysis employed in Opinion of the Justices, when the

of the State Constitution. See i d. governmental en tity, thereby comporting with the equal protection guarantees an individual who brought suit for a personal action against a non against the S tate would place an aggrieved individual in the same position as discovery rule, the proposed period of limitations for filing personal actions Id. In other words, by construing RSA 5 p. 4 41 - B:14, IV to incorporate the determined that the limitation s period raised “no other constitutional” issues. personal injury actions against private tortfeasors, see RSA 508:4, we version of RSA 541 - B:14, I V was otherwise equivalent to the period accorded protection analysis. Id. S ince the limitations period contained in the amended limitations created by the statute could be “justifiable” under an equal by individuals who could not reasonably have brought suit within the period of and brackets omitted). We stated that we did not see how foreclosing a claim before he has had a reasonable chance to discover its existence.” Id. (quotation that “it is manifestly unfai r to foreclose an injured person’s cause of action rule. Id. at 566. We based our conclusion on the long - standing le gal princip l e State’s equal protection clause s because it did not account for the discovery IV’s statute of limitations, as then proposed in HB 440, would run afoul of this Relevant to the case before us, the court determined that RSA 541 - B:14,

N.H. at p. 5 561 - 62. of the equal protection clau ses to HB p. 4 44 0. See Opinion of the Justices, 126 of the government and the injured person, it was unanimous in its application I, art. 14. Although the court was divided on the relative weight of the interests right to the redress of their actionable injuries.” Id. at 560; see N.H. CONST. pt immunity doctrine against “the constitutional princip l e that all citizens have a weighed several policy considerations supporting continuation of the sovereign Brosseau, 124 N.H. at 197 (Douglas and Batchelder, JJ., concurr ing)). We of the Justices, 126 N.H. at 559 (quotation and brackets omitted) (citing outweigh the benefits sought to be conferred upon t he general public.” Opinion places on an injured person’s right to recovery be not so serious that they of the doctrine of sovereign immunity depends upon whether the restrictions it and 12. See id. W e reasoned that the “continued existence of any application Hampshire Constitution and t he equal protection clauses of P art I, A rticles 2 5

to bring a claim within two years after they reach the age of majority. See RSA private tortfeasor would face no such barrier to recovery as they would be able act in their own interests. In contrast, children who have claims against a custody, would have their rights extinguished prior to their first opp ortunity to parent or next friend willing to bring suit on their behalf, like many in DCYF DCYF suggests, then children injured by the State who do not have such a behalf before they reach the age of majority. If we were to apply the rule that class of plaintiffs that must rely on a parent or next friend to bring suit on their The rationale in preventing this type of injustice extends equally to a

(brac kets omitted). action before he has had a reasonable chance to discover its existence.” Id. pr incip l e that “it is manifestly unfair to foreclose an injured person’s cause of of the Justices, 126 N.H. at p. 5 566. In s o concluding, we noted our long - standing would violate the equal protection mandates of the State Constitution. Opinion RSA 508:4 to claims against the State when it has waived sovereign immunity have previously concluded that fail ing to apply the discovery rule contained in against the State in certain circumstances. See DCYF, 173 N.H. at 616. W e sovereign immunity so that citizens may recover in tort for claims arising does not otherwise exist. Rather, t he purpose of RSA chapter 541 - B is to waive In addition, RSA chapter 541 - B does not create a statutory remedy that

of the Justices, 126 N.H. at p. 5 561 - 62. equal protection guarantees of the New Hampshire Constitution. See Opinion effect of creating two similarly situated classes of plaintiffs implicating the Thus, we conclude that readin g RSA 541 - B:14, IV as DCYF suggests has the child reaches the age of majority. Compare RSA 541 - B:14, IV, with RSA 508:8. bring a lawsuit against a private tortfeasor within two years after the date the only withi n three years of the alleged harm, whereas a child plaintiff could plaintiff could bring a lawsuit against the State through a parent or next friend injured by a private tortfeasor. Under RSA 541 - B:14, IV as written, a child plaintiffs who have been injured by the State and child plaintiffs who have been B:14, IV would create two classes of similarly situated child plaintiffs: child Failing to read RSA 508:8 into the statute of limitations in RSA 541 -

where a remedy does not otherwise exist.” We disagree with these arguments. that RSA p. 5 541 - B:14, IV “creates a statutory private remedy against the State statute “does not treat similarly situated persons differently.” Second, it argues B:14, IV is constitutional as applied to child plaintiffs. First, it argues that the DCYF puts forth two arguments in support of its position that RSA 541 -

the challenged legislation meets this test rests with the government. Id. important governmental objective. Id. at 7 p. 6 62. The burden to demonstrate that this test, the c hallenged legislation must be substantially related to an intermediate scrutiny test. See Cmty. Res. for Justice, 1 p. 5 54 N.H. at 758. Under substantive right, see Opinion of the Justices, 126 N.H. at 559, we employ the 6

HICKS, BASSETT, and DONOVAN, JJ., concurred.

remaining arguments. issue is dispositive as to all of DCYF’s arguments, we need not address DCYF’s decision.” (quotation and bra ckets omitted)). Because our decision on this mistaken grounds, we will affirm if valid alternative grounds support the N.H. 544, 552 (2013) (“Where the trial court reaches the correct result on for further proceedings consistent with this opinion. See State v. Dion, 1 p. 6 64 For these reasons, we affirm the decision of the trial court and remand

the protections of RSA 508:8. Opinion of the Justices, 12 p. 6 6 N.H. at 566. under an equal protection analysis, for denying persons injured by the State” occurring. Thus, as with the discovery rule, “[w] e see no reason justifiable, designed to prevent just such an arbitrary extinguishment of rights from of rights is substantially related to an interest of the government. RSA 508:8 is against private tortfeasors. Nor has it articulated how such an extinguishment plaintiffs, while allowing lawsuits for children in t he same position with claims governmental one — for f oreclosing lawsuits against the State for some child 508:8. DCYF has failed to articulate any reason — let alone an important