2024 N.H. 28, City of Manchester v. Bellenoit

brief and orally), for the defendant s. McDowell & Morrissette, P.A., of Manchester (Mar k D. Morrissette on the

and orally), for the plaintiff. Office of the City Solicitor, of Manchester (Gregory T. Muller on the brief

Citation: City of Manchester v. Bellenoit, 2024 N.H. 28 Case No. 2022 - 0651 Hillsborough - northern judicial district

THE SUPREME COURT OF NEW HAMPSHIRE

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

each Defendant was subject to a CBA negotiated after the p. 2 2008 amendment summary judgment. The court ruled that because “at the time of their injuries, City’s motions for summary judgment and denying the defendants’ motions for [¶4] In September 2022, the court issued a written order granting the

hearing on the motions. were consolidated for resolution. In June p. 2 2022, the superior court held a objections. Because each case raised the same legal question, the motio ns the parties filed cross - motions for summary judgment and corresponding their sick leave benefits without the requirement of repayment. In each case, 33.064(B)(2) (pre - 2008 amendment), they ha ve a vested right to restoration of time that each officer used. The defendants argue d that pursuant to section that upon repayment of the sick leave benefits, the City would restore the sick workers’ compensation was pending or being appealed. T he City acknowledged defendant repay the sick leave benefits that he received while his eligibility for demanding that, pursuant to section 33.064(B) (post - 2008 amendment), each [¶3] In 2019, the City brought four separate actions in plea of debt

of sick leave benefits. amount that each defendant had previously received from the City in the form compensation benefits and received payment s from the City in the same leave benefits. Ultimately, each defendant was deemed eligible for workers’ was in the process of being resolved, the City paid each defendant accrued sick pending determination of eligibility. Between p. 2 2017 an d 2018, while each claim defendant’s claim was either denied and subsequently appealed, or delayed employment and filed a workers’ compensation claim with the City. Each Between 2015 and 2018, each defendant was injured in the scope of his Each defendant was hired and became a permanent employee prior to 2008. for patrolmen — that periodically enter into and renew CBA s with the City. (MAPS) for sergeants or the Manchester Police Patrolmen’s Association (MPPA) bargaining units (CBU) — the Manchester Associa tion of Police Supervisors the City of Manchester. Each defendant i s a member of one of two collective The defendants are police officers, either sergeants or patrolmen, employed by [¶2] The following facts are either undisputed or supported by the record.

we affirm. leave, section p. 3 33.064(B) (post - p. 2 2008 amendment) applied to them. Accordingly, bargaining agreements (CBA) in effect when the defendants used the ir sick did not create a vested contractual right; and (2) pursuant to the collective defendants. We conclude that: (1) section 33.064(B)(2) (pre - 2008 amendment) 2008 (hereinafter, section 33.064(B) (post - 2008 amendment)) applied to the vested contractual right; and (2) section 33.064(B) of the MCO as amended in (hereinafter, section 33.064(B)(2) (pre - 2008 amendment)) did not create a Manchester City Ordinance (MCO) effective prior to a 2008 amendment 3

version of section p. 3 33.064 of the MCO applies to the defendants. Prior to 2008, [¶7] This case requires that we determine whether the pre - or post - 2008

application of the law to the facts de novo. Id. — N.H., 167 N.H. at p. 3 300 (quotation omitted). We review the trial court’s moving party is enti tled to judgment as a matter of law.” Am. Fed’n of Teachers and, if no genuine issue of material fact exists, we determine whether the the light most favorable to each party in its capacity as the nonmoving party rulings on cross - motions for summary judgment, “we consider the evidence in 33.064(B) (post - 2008 amendment) to them. When reviewing a trial c ourt’s to section 33.064(B)(2) (pre - 2008 amendment); and (2) applying section restoration of sick leave credit without the requirement of repayment pursuant (1) determining that the defendants did not have a vested right in the summary judgment. Specifically, the defendants argue that the court erred in: the City’s motion s for summary judgment and denying their motions for [¶6] The defendants argue on appeal that the trial court erred in granting

filed a motion to reconsider, which the court denied. This appeal followed. the concept of restoration of sick benefits without repayme nt.” The defendants cannot be construed as an intention on the City’s part to be forever bound to explained, “the City’s silence on the repayment issue in the pre - 2008 ordinance benefits would be restored withou t repayment.” Consequently, the court discuss repayment and, in addition, there was “no stated policy that sick leave reasoned that, in this case, section p. 3 33.064(B)(2) (pre - 2008 amendment) did not State of N.H., 167 N.H. 294, 301 (2015) (quotation omitted). The trial court until the legislature shall ordain otherwise.” Am. Fed’n of Teachers — N.H. v. private contractual or vested rights but merely declares a policy to be pursued itself contractually, the presumption is that a law is not intended to create requires that “absent some clear indication that the legislature intends to bind [¶5] The court also considered the “unmistakability doctrine,” which

amendment) was silent as to repayment. compensation without repayment because section p. 3 33.06 p. 4 4(B)(2) (pre - 2008 not have relied on the restoration of sick leave credit after receipt of workers’ were “not subject to a unilateral change in compensation” and that they could of Cheshire, 126 N.H. 445 (1985), reasoning that in this case, the defendants amendment). The court distinguished the case at hand from Gilman v. County requirement of repayment pursuant to section 33.06 4(B)(2) (pre - 2008 do not have a vested right to restoration of sick leave benefits without the retroactive application of the law.” T he court determined that the defendants 2008 amendment) to the defendants did not constitute an “unconstitutional accrued after the date of the new CBA,” application of section 33.064(B) (post court also ruled that even if the negotiated CBAs “only changed the benefits took effect,” section 33.064(B) (post - 2008 amendment) applied to them. The 4

offer equivalent protections where a law impairs a contract, or where a law [of the Federal Constitution] and part I, article 23 [of the State Constitution] to (Furlough), 135 N.H. 625, 630 (1992) (“We . . . understand article I, section 10 Teachers — N.H., 167 N.H. at 300 - 01; see also Opinion of the Justices that implicates Part I, Article 23 of the State Constitution. See Am. Fed’n of vested right that cannot be subsequently impaired or abrogated is a question [¶10] Whether section 33.06 p. 4 4(B)(2) (pre - 2008 amendment) establishe d a

agree with the City. non - payment” pursuant to section 33.06 p. 4 4(B)(2) (pre - 2008 amendment). We Court correctly concluded that the [defendants] did not have a vested right to disagrees, arguing that “under the ‘unmistakability doctrine’ the Superior benefit set forth in section 33.064(B)(2) (pre - 2008 amendment). The City employee status prior to the 2008 amendment, they have a vested right to the [¶9] The defendants argue that because they attained permanent

agreement”). that in some cases, certain vested rights may “survive the termination of the ordinary course, on the termination of the collective bargaining agreement,” but (explaining that “[a]s a general rule, contractual obligations cease, in the Lord, Williston on Contracts § 55:27, at 121 - 22, 12 p. 4 4 - 25 (4th ed. 2016) 33.064(B) (post - 2008 amendment), apply to the defendants. See 20 Richard A. whether the negotiated CBAs, to the extent that they incorporate section amendment) created a vested right. We start here as this determination affects defendants, w e first consider whether section 33.064 (B)(2) (pre - 2008 [¶8] When determining which version of section 33.064(B) applies to the

A. Vested Right

added.) received. Upon repayment sick leave credit shall be restored.” (Emphasis the employee shall repay to the city all sick leave benefits the employee has determination that the employee is eligible for workers compensation benefits, compensation eligibility, the employee may receive sick leave benefits. On a City amended section 33.06 p. 4 4(B) to read: “P ending determination of workers the event that it disagreed with our interpretation. Id. at p. 5 593 - 94. In 2008, the also stated that the City was “free to amend” its ordinances “as it sees fit” in not require the plaintiff to repay the City.” Stankiewicz, 156 N.H. at 593. We ordinance requires the City to restore the plaintiff’s sick leave credit, but does the employee’s sick leave credit. We concluded that “the plain language of the the provision required an employee to reimburse the City prior to restoration of to interpret section 33.064(B)(2) (pre - 2008 amendment) to determine whether Stankiewicz v. City of Manchester, 156 N.H. 587, 592 - 93 (2007), we were asked eligibility for compensation benefits, sick leave credit shall be restored.” In eligibility, the employee may receive sick leave benefits. On a determination of section 33.064(B)(2) stated that “[p] ending determination of compensation 5

shall ordain otherwise.’” Id. (quoting National R. Passenger Corp., 470 U.S. at vested rights but merely declares a policy to be pursued until the legislature presumption is that a law is not intended to create private contractual or clear indication that the legislature intends to bind itself contractually, the (quoting National R. Passenger Corp., 470 U.S. at 466). Thus, “‘absent some would be to limit drastically the essential powers of a legislative body.’” Id. as contracts when the obligation is not clearly and unequivocally expressed contracts, are inherently subject to revision and repeal, and to construe laws Teachers — N.H., 167 N.H. at 301 (quotation omitted). “‘Policies, unlike of the state to be bound to particular contractual obligations.” Am. Fed’n of determine whether the challenged legislative enactment evinces the clear intent Fed’n of Teachers — N.H., 167 N.H. at 301. This doctrine “mandates that we Passenger Corp. v. A. T. & S. F. R. Co., 470 U.S. 4 p. 5 51, 466 (1985)); see also Am. Fighters of N.H. v. State of N.H., 167 N.H. 188, 1 9 4 (2014) (quoting National R. contracts, but to make laws that establish the policy of the state. ’” Prof. Fire recognition that the “‘ principal function of a legislature is not to make [¶13] We adopted the “unmistakability doctrine” based upon our

(quotation omitted). relationship must have a significant and legitimate public purpose.” Id. enactment that constitutes a substantial impairment of a contractual (quotation omitted). “To survive a contract clause chall enge, a legislative that contractual relationship, and whether the impairment is substantial.” Id. whether there is a contractual relationship, whether a change in law impairs N.H. at 301 (quotation omitted). “This inq uiry, in turn, has three components: impairment of a contractual relationship.” Am. Fed’n of Teachers — N.H., 167 determine whether a change in state law has resulted in the substantial [¶12] “When evaluating a contract clause claim, a court must first

omitted). Underwriting Assoc., 1 p. 5 59 N.H. 627, 641 (2010) (brackets and quotation not be applied retroactively.” Tuttle v. N.H. Med. Malpractice Joint of a new law would adversely affect an individual’s substantive rights, it may Teachers — N.H., 167 N.H. at 300 - 01 (quotation omitted). Thus, “if application be deemed retrospective within the meaning of Part I, Article 23.” Am. Fed’n of new disability, in respect to transactions or considerations already pas t, must existing laws, or creates a new obligation, imposes a new duty, or attaches a “e very statute which takes away or impairs vested rights, acquired under punishment of offenses.” When interpreting this provision, we have held that therefore, should be made, either for the decision of civil causes, or the “Retrospective laws are highly injurious, oppressive, and unjust. No such laws, [¶11] Part I, Article 23 of the New Hampshire Constitution provides:

771 (2019); see also Am. Fed’n of Teacher s — N.H., 1 p. 6 67 N.H. at 300. constitutionality of a local ordinance de novo. State v. Lilley, 171 N.H. 766, abrogates an earlier statute that is itself a contract.”). We review the 6

shall in any way be affected, released, or discharged, but may be given, secured, or accrued under any ordinance previous to its repeal No suit, proceedings, right, fine, forfeiture, or penalty instituted, created,

(pre - 2008 amendment). Section 10.17(B) provides: evinces the City’s clear intent to be contractually bound to section 33.0 p. 6 64(B)(2) [¶16] The defendants nonetheless argue that section 10.17(B) of the MCO

and manifest purpose.”). faithfully to determine it s plain and rational meaning, and to promote its object the words used in the ordinance, considering the language honestly and 2023) (“If possible, the [enacting body’s] intention should be ascertained from McQuillin, The Law of Municipal Corporations § 20:48, at 250 - 51 (3d ed. rev. the concept of restoration of sick benefits without repayment.” See p. 6 6 Eugene cannot be construed as an intention on the City’s part to be forever bound to court that “the City’s silence on the repayment issue in the pre - 2008 ordinance Am. Fed’n of Teachers — N.H., 167 N.H. at 301. Indeed, we agree with the trial section 33.064(B)(2) (pre - 2008 amendment) as a c ontra ctual obligation. See resolve the question as to whether the City clearly intended to be bound by Stankiewicz, 156 N.H. at 593. This observation, however, does not conclusively plaintiff’s sick leave credit, but does not require the plaintiff to repay the City.” credit shall be restored.” The ordinance plainly “requires the City to restore the benefits. On a determination of eligibility for compensation benefits, sick leave determination of compensation eligibility, the employee may receive sick leave [¶15] Section 33.064(B)(2) (pre - 2008 amendment) states that “[p] ending

of N.H., 1 p. 6 67 N.H. at 194. amendment), as it is the primary ordinance in question. See Prof. Fire Fighters we start by considering the language of sect ion 33.064(B)(2) (pre - 2008 closely analyze the provision s of the ordinance at issue. See id. Accordingly, 8 (1st Cir. 1997)). We begin by examining the ordinance’s language itself and of Teachers — N.H., 167 N.H. at 301 (quoting Parker v. Wakelin, 123 F.3d 1, 7 statute and in defining the contours of any contractual obligation.’” Am. Fed’n cautiously both in identifying a contract within the language of a regulatory [¶14] “‘When reviewing a particular enactment, . . . we . . . proceed

United States Con tract Cl ause). unmistakability doctrine when considering whether a city code violates the Chattanooga, Tennessee, 841 F.3d 433, 43 p. 6 6 (6th Cir. 2016) (applying the under Part I, Article 23 of the State Constitution); cf. Frazier v. City of (2004) (considering whether an ordinance is unconstitutionally retrospective Hampshire Constitution. See Thayer v. Town of Tilton, 151 N.H. 483, 490 - 91 determine whether the ordinance violates the contract clause of the New ordinance rather than a statute, we will apply the unmistakability doctrine to 465 - 66). Although here we are considering the constitutionality of an p. 7 7

provides for amendment and modification of sections 33.020 through 33.082. exception to the general rule set forth in section 10.1 p. 7 7(B) given that it expressly [¶19] Thus, we agree with the City that section 33.023 provides an

4 p. 7 70 U.S. at 466)). essential powers of a legislative body. ’” (quotin g National R. Passenger Corp., not clearly and unequivocally expressed would be to limit drastically the revision and repeal, and to construe laws as contracts when the obligation is N.H., 167 N.H. at 194 (“‘ Policies, unlike contracts, are inherently subject to ordinance scheme is clearly a statement of policy.” See Prof. Fire Fighters of amendment and modification, demonstrating, as the City states, “that this thus contemplates that sections 33.020 through 33.082 will be subject to negotiated to conform with sections 33.020 through 33.082. Section 33.023 not interfere with any existing contracts unless or until such contracts are sections 33.020 through 33.082 are amended or modified, such changes will ordinances,” Stankiewicz, 156 N.H. at 590, section 33.023 explains that when abandon valid contracts with its employees’ groups by adopting new 33.023, their reading is too narrow. Given that the City cannot “simply alter or [¶18] Although we agree with the defendants’ interpretation of section

unless or until such contracts were re negotiated. 33.082 were adopted, those provisions would not interfere with prior contracts preservation” provision that provides that when sections 33.020 through repeal.” The defendants counter that section 33.023 is a “historical MCO §33.020 through 33.082 . . . to be subject to subsequent amendment and because section 33.023 “establishes that the City intended the provisions of grant[] a vested right” under section 33.064(B)(2) (pre - 2008 amendment) “the City never intended to be bound to a particular contractual obligation or 33.082 of this chapter.” The City argues that section 33.023 demonstrates that contracts are renegotiated to confo rm with the provisions of §§ 33.020 through binding contract between the city and employees’ groups unless or until such through 33.082 of this chapter shall amend or modify any existing legal and [¶1 p. 7 7] Section 33.023 provides that “[n]one of the provisions of §§ 33.020

specific rule to the circumstances at issue here is the controlling ordinance.” these two provisions contradict each other, MCO §33.023, being the more express exception to that general rule” and argues that “[t]o the extent that “general rule for the MCO,” the City points to section 33.023 of the MCO as “an in the benefit.” Although the City recognizes that section 10.1 p. 7 7 states a compensation benefit with r egard to those employees who had a vested interest its contractual obligations, the City cannot eliminate a clear contractual enactment of Ordinance § 10.17 makes it clear that it intends to be bound to (Emphasis added.) Specifically, the defendants argue that “where the City’s

continued in force unless it is otherwise expressly provided. prosecuted, enjoyed, and recovered as fully as if the ordinance had p. 8 8

the sick leave benefits were part of the employee’s compensation for services but unused sick leave was not “a mere expectancy of a future benefit” because 44 p. 8 8. We held, however, that the employee’s right to payment for accumulated, contingent nor a mere expectance of a future benefit.” Gilman, 126 N.H. at [¶22] Indeed, we explained in Gilman that “[a] vested right cannot be

Employees’ Retirement System, 173 F.3d 46, 6 1 (1st Cir. 1999))). find themselves in markedly different circumstances’” (quoting Parella v. R.I. case. Particular plaintiffs bringing particular Contract Clause claims . . . may of the party claiming a contractual right “‘by their nature, will vary from case to Fed’n of Teachers — N.H., 167 N.H. at 304 (explaining that the circumstances 200 p. 8 8 amendment) created a vested right. See Gilman, 126 N.H. at 447; Am. holding in Gilman therefore does not control whether section 33.064 (B)(2) (pre substantially different than the benefit at issue in the case at hand, and our Gilman and this case involve sick leave, the benefit at issue in Gilman is previously received. See Stankiewicz, 156 N.H. at 593. Thus, although both leave credit without being obligated to repay the City for the sick leave benefits for workers’ compensation, the employee is entitled to the restoration of si ck the case before us is whether, upon determination that an employee is eligible unused, sick leave from a public employer.” Id. a t 446. In contrast, at issue in appeal.” At issue in Gilman was the “payment for certain accumulated, but discussed in Gilman as “the same benefits that are at issue in the instant [¶21] The defendants, however, mischaracterize the sick leave benefits

rights of those already benefitting from it.” Id. at 44 p. 8 8 - 49. its sick leave policy after the compensation was earned so as to divest the “the employer could not impair its obligation to pay those benefits by changing a vested right to the sick leave benefits set forth in the 1980 policy because employee. Gilman, 126 N.H. at 446 - 47. We concluded that the employe e had employee sought payment, w hich would result in a reduced payout to the whether the employer could apply the amended 1982 policy in effect when the in a 1980 policy in effect when the employee accrued most of his sick leave, or employee’s accrued sick leave, the employer must use the higher rate set forth right. At issue in Gilman was whether, in calculating the payout value of an makes clear that section 33.064(B)(2) (pre - 2008 amendment) created a vested [¶20] The defendants nevertheless argue that our decision in Gilman

amendment) does not create a vested right. unmistakability doctrine, we conclude that, section 33.064(B)(2) (pre - 200 p. 8 8 under the previous terms of employment.”). Accordi ngly, in applying the merely limits the ability of an employer to modify rights which have vested employers from modifying the terms of employment. Rather, this opinion a lso Gilman, 126 N.H. at 450 (“[T]his opinion should not be read to preclude of the state. ’” Id. (quoting National R. Passenger Corp., 470 U.S. at 466)); see legislature is not to make contracts, but to make laws that establish the policy Our conclusion aligns with the fact that “‘ [t]he principal function of a p. 9 9

appli e s to the defendants. We agree with the City. [the] contract,” and therefore, section 33.064(B) (post - 2008 amendment) that it “is seeking to enforce the law of the contract s as it existed at the time of had incorporated the amended version of section 33.064(B). The City argues subject to CBAs that had been negotiated following the 2008 amendment and that at the time of their injuries and use of sick leave, the defendants were 2008 amendment) — an argument that we rejected above. The City counters assertion that t he defendants h ave a vested right in section 33.064(B)(2) (pre by municipal law. This argument, however, is premised on the incorrect apply to them because a CBA cannot defeat a vested contractual right gained defendants argue that section 33.064(B) (post - 2008 amendment) does not section 33.064(B) (post - 2008 amendment) applies to the defendants. The [¶24] W e next consider whether the trial court correctly determined that

B. Collective Bargaining Agreements

when the statutes were in effect). fact contract between the State and the judges who entered into employment statutes that provided for retirement benefits to judges created an implied - in - Cloutier v. State, 163 N.H. 445, 44 p. 9 9, 454 (2012) (holding that now - repealed which establishes the State’s pension plan, did not create vested rights), with 304 - 0 6 (holding that two provisions contained within RSA chapter 100 - A, contractual right. Compare Am. Fed’n of Teachers — N.H., 167 N.H. at 297, ordinance’s compens ation plan, however, does not, in and of itself, create a in such employment”). A provision or enactment’s location within an benefits vests at the time one becomes a governmental employee or continues they form a part of the employment contract, and the right to receive such because sick leave benefits “constitute a part of an employee ’s compensation, in section 33.064(B)(2) (pre - 2008 amendment). See i d. at 449 (stating that argument that they “became vested in the compensation plan benefits” detailed compensation plan [that] spans [MCO] § 33.40 through 33.064” as part of their defendants point to the placement of section 33.064 within “[t]he City’s compensation,” as the value of their sick leave has not changed. The Gilman, the defendants here “were not subject to a unilateral change in [¶23] We also agree with the superior court that unlike the employee in

the benefit set forth in section 33.064(B)(2) (pre - 2008 amendment). section 33.064(B) (post - 2008 amendment). Thus, the defendants never earned 33.064 was amended and the relevant CBAs were negotiated to incorporate experience a delayed workers’ compensation determi nation until after section Here, the defendants did not suffer an injury, use their sick leave, or workers’ compensation claim that resulted in a determination of eligibility. injury and then using sick leave benefits during the pendency of the officer’s amendment) was contingent on an officer suffering an employment - related at 448 - 4 p. 9 9. In contrast, the benefit set forth in section 33.064(B)(2) (pre - 2008 already rendered, the “payment for which was to be made at a future date.” Id. p. 10 10

City and MPPA, effective July 1, 2016 through June 30, 2019. City and MAPS, effective July 1, 2016 through Jun e 30, 2019, and the agreement between the assume the trial court’s finding to be true and focus our analysis on the agreement between the conclusion that section 33.064(B)(2) (pre - 2008 amendment) did not apply to the defendants, we sick leave, they were otherwise subject to the CBAs in effect at those times. T hus, given our prior 33.064(B)(2) (pre - 2008 amendment), they do not dispute that when they were injured and used their sick leave pending determination of workers’ comp ensation eligibility is governed by section in effect when each officer used his paid sick leave. Although the defendants argue that the use of The trial court found, and the City agrees, that the specific CBAs relevant to this case were those 1

of an officer’s sick leave credits or the requirement of repayment. benefits and the impact that an eligibility determination has on the restoration CBAs d id not address section 33.064 or the issue of workers’ compensation this right in the negotiated CBAs, they did not do so. Rather, the controlling forth in section 33.064(B)(2) (pre - 2008 amendment), or otherwise addressed assuming that MAPS and MPPA could have negotiated to retain the right set with any City ordinance “now in effect” “will be null and void.” Furthermore, expressly recognized that any portion of the agreement found to be in conflict 33.064 (post - 2008 amendment), as the law of the contract. See id. E ach CBA 1 the version of the MCO in existence at that time, which included section to this case were negotiated following the 2008 amendment, they incorporated following the 2008 amendment. See i d. at 590. Thus, when the CBAs relevant between the city and employees’ groups” until such contracts were negotiated amendment) did not “amend or modify any existing legal and binding contract [¶27] P ursuant to section 33.023, section 33.064 (B) (post - 2008

sections 33.020 through 33.082. See id. contract[s] . . . unless or until such contracts are renegotiated to conform with” 33.020 through 33.082 do not amend or modify “any existing legal and binding ordinances.” Id. Therefore, section 33.023 of the MCO provides that sections alter or abandon valid contracts with its employees’ groups by adopting new authority to adopt ordinances for its governance, may not, however, simply contract’s formation a nd performance.” Id. “Th e City, despite its general terms of the MCO, as it is the law subsisting at the time and place of the employees’ groups enter into contracts, those contracts must comply with the N.H. at 590 (quotation and brackets omitted). “Thus, when the City and any they were expressly referred to or incorporated in its terms.” Stankiewicz, 156 contract, and where it is to be performed, enter into and form a part of it, as if [¶26] “The laws which subsist at the time and place of the making of a

question of law that we review de novo. Id.; Stankiewicz, 156 N.H. at 589. 4 18 - 19 (2020). The interpretation of both a contract and an ordinance is a Monadnock Reg’l Sch. Dist. v. Monadnock Dist. Educ. Ass’n, 173 N.H. 4 p. 11 11, reviewing a CBA, we apply the general rules of contract interpretation. existence when the CBAs were renewed. A CBA is a contract, and thus i n were negotiated following the 2008 amendment and the version of the MCO in [¶25] Resolving this issue requires a review of the relevant CBAs that 11

33.064(B)(2) (pre - 2008 amendment) created a vested contractual right and, repayment to have sick leave restored. Because we conclude that section effect at that time, Section 33.064(B)(2) (pre - 2008 amendment), do not require 2008. They argue that provisions of the Manchester City Ordinance (MCO) in [¶32] Each of the officers had become a permanent employee prior to

$1,925.51. Brown, $4,572.64; Officer Gregory Ditullio, $656.89; and Officer Jacob Tyler, following amounts: Sergeant Robert Bellenoit, $12,930.63; Officer Richard c ourt against each of the officers, seeking to recover sick leave time in the [¶31] The City subsequently commenced debt collection actions in c ircuit

benefits. sick leave. The four officers were ultimately awarded workers’ compensation delayed. Pending ultimate resolution of their claims, the officers used accrue d claims were either denied by the City and then appealed, or were otherwise benefits. Each of the officers submitted workers’ compensation claims. The injured in the course of their duties. The City seeks repayment of sick leave [¶30] The City of Manchester has sued four of its police officers who were

specially assigned under RSA 490:3, II, dissenting. M AC DONALD, C.J., and ABRAMSON, J., retired superior court justice,

RSA 490:3, dissented. and ABRAMSON, J., retired superior court justice, specially assigned under BASSETT and HANTZ MARCONI, JJ., concurred; M AC DONALD, C.J.,

the defendants. judgment in favor of the City and the court’s denial of summary judgment for defendants. We therefore affirm the superior court’s grant of summary amendment) and that section 33.064(B) (post - 2008 amendment) applies to the have a vested right to the benefits provided in section 33.064 (B)(2) (pre - 2008 [¶29] For the foregoing reasons, we conclude that the defendants do not

defendants. See i d. at 590 - 91. conclude that section 3 3.064(B) (post - 2008 amendmen t) applies to the section 33.064(B) (post - 2008 amendment) as the law of the contract, we the time that they used their sick leave, were subject to CBAs that incorporated which specifically addresses his claim.”). Therefore, b ecause the defendants, at CBA is silent on this issue, and the plaintiff may avail himself of the MCO, law of the contract, govern ing where the CBA was silent. See id. at 592 (“The [¶28] Accordingly, section 3 3.064(B) (post - 2008 amendment) became the p. 12 12

to make contracts, but to make laws that establish the policy of the state.’” Id. based upon our recognition that “‘the principal function of a legislature is not [¶37] As the majority notes, w e adopted the “unmistakability doctrine”

See Prof. Fire Fighters of N.H. v. State of N.H., 167 N.H. 188, 193 - 94 (2014). — here, the MCO — can be treated as a contract for contracts clause purposes. Fed’n of Teachers — N.H., 167 N.H. at 301. Under certain circumstances, laws when there is a substantial impairment of a contractual relationship. Am. [¶36] As the majority correctly states, a contracts clause violation occurs

Opinion of the Justices (Furlough), 135 N.H. at 630. contracts clauses interchangeably and rely on federal ca ses for guidance. See these circumstances, we refer to the United States and New Hampshire Because the protections under the constitutions are equivalent when applied to transactions or consideration s already past” (quotation and citation omitted)). new obligation, imposes a new duty, or attaches a new disability, in respect to takes away or impairs vested rights, acquired under existing laws, or creates a (noting “ret rospective law” “has been defined as follows: every statute, which therefore, be made . . ..”); Opinion of the Justices (Furlough), 135 N.H. at 630 laws are highly injurious, oppressive and unjust. No such laws should (1992) (citation omitted); see also N.H. CONST. pt. I, art. 23 (“Retrospective is itself a contract.” Opinion of the Justices (Furlough), 135 N.H. 625, 630 where a law impairs a contract, or where a law abrogates an earlier statute that article 23 [of the New Hampshire Constitution] . . . offer equivalent protections [¶35] “[A]rticle I, section 10 [of the United States Constitution] and part I,

771 (2019). the constitutionality of a local ordinance de novo. State v. Lilley, 171 N.H. 766, of Teachers — N.H. v. State of N.H., 167 N.H. 294, 300 - 01 (2015). We review that is governed by Part I, Article 23 of the State Constitution. See Am. Fed’n vested right that cannot be subsequently impaired or abrogated is a question [¶34] Whether section 33.064(B)(2) (pre - 2008 amendment) establishes a

agree. benefits detailed in section 33.064(B)(2) (pre - 2008 amendment) are vested. We employee status prior to the 2008 amendment, their compensation plan amendment). Specifically, they argue that because they attained permanent the requirement of repayment purs uant to section 33.064(B)(2) (pre - 2008 argue that they are entitled to the restoration of their sick leave credit without version of MCO section 33.064 applies to the defendants. The defendants [¶33] This case requires that we determine whether the pre - or post - 2008

unconstitutionally retrospective, we respectfully dissent. consequently, application of section 33.064(B) (post - 2008 amendment) is p. 13 13

Indeed, our holding in Stankiewicz is premised upon the absence of any of the public employee’s contemplated compensation.” (quotation omitted)). where authorized in the terms of employment, are considered an integral part Cheshire, 126 N.H. 445, 448 (1985) (“In New Hampshire, sick leave benefits, employee’s contemplated compensation.”); see also Gilman v. County of salary, but will include any other benefits that are an integral part of the 597, 601 (1978) (“An employee’s compensation is not necessarily limited to his compensation benefits. See Jeannont v. N.H. Personnel Comm’n, 118 N.H. to restoration of sick leave credit upon determination of eligibility for leave benefits pending determination of compensation eligibility, and the right compensation benefit to qualifying public employees: the ability to use sick [¶40] Section 33.064(B)(2) (pre - 2008 amendment) provides a clear

restored. See Stankiewicz, 156 N.H. at 593. compensation claims were pending prior to having their sick leave credit repay the sick leave benefits that they received while the ir workers’ restored.” Notably, the provision does not address whether employees must determination of eligibility for compensation benefits, sick leave credit shall be compensation eligibility, the employee may receive sick leave benefits. On a 33.064(B)(2) (pre - 2008 amendment) states that “[p]ending determination of Stankiewicz v. City of Manchester, 156 N.H. 587, 592 - 94 (2007). Section [¶39] As the majority notes, we previously construed the provision in

167 N.H. at 194. section 33.064(B)(2) (pre - 2008 amendment). See Prof. Fire Fig hters of N.H., provision of the ordinance at issue. See id. Thus, we turn to the language of examining the ordinance’s language itself and perform a close analysis of the (quoting Parker v. Wakelin, 123 F.3d 1, 7 - 8 (1st Cir. 1997)). We begin by statute and in defining the contours of any contractual obligation.’” Id. cautiously both in identifying a contract within the language of a regulatory [¶38] “‘When reviewing a particular enactment, . . . we . . . proceed

Id. (quoting National R. Passenger Corp., 470 U.S. at 465 - 66). declares a policy to be pursued until the legisla ture shall ordain otherwise.’” law is not intended to create private contractual or vested rights but merely the legislature intends to bind itself contractually, the presumption is that a Passenger Corp., 470 U.S. at 466). Thus, “‘absent some clear indication that drastically the essential powers of a legislative body.’” Id. (quoting National R. obligation is not clearly and unequivocally expressed would be to limit subject to revision and repeal, and to construe l aws as contracts when the 167 N.H. at 301 (quotation omitted). “‘Policies, unlike contracts, are inherently bound to particular contractual obligations.” Am. Fed’n of Teachers — N.H., challenged legislative enactment evinces the clear intent of the state to be N.H. at 301. This doctrine “mandates that we determine whether the R. Co., 470 U.S. 451, 466 (1985)); see also Am. Fed’n of Teachers — N.H., 167 at 194 (brackets omitted) (quoting National R. Passenger Corp. v. A. T. & S. F. p. 14 14

33.082 of this chapter shall amend or modify any exi sting legal and binding That section provides that “[n]one of the provisions of §§ 33.020 through vested right. We disagree with the majority’s interpretation of section 33.023. and, therefore, section 33.064(B)(2) (pre - 2008 amendment) does not create a provides for amendment and modification of sections 33.020 through 33.082” exception to the general rule set forth in section 10.17(B) given that it expressly [¶43] The majority concludes “that [MCO] section 33.023 provides an

be “affected, released, or discharged” by the City. “as if the ordinance had continued in force,” and informs that said right cannot and recover[]” the right set forth in section 33.064(B)(2) (pre - 2008 amendment) contractually bound to allowing qualifying employees to “prosecute[], enjoy[], Thus, as relevant here, section 10.17(B) evinces the City’s intent to be

continued in force unless it is otherwise expressly provided. prosecuted, enjoyed, and recovered as ful ly as if the ordinance had shall in any way be affected, released, or discharged, but may be given, secured, or accrued under any ordinance previous to its repeal No suit, proceedings, right, fine, forfeiture, or penalty instituted, created,

subsequent time.” We agree. Section 10.17(B) provides: unyielding even where the ordinance may be modified or repealed at a evidence that any right an employee gained under the MCO “was to be [¶42] The defendants also point to section 10.17(B) of the MCO as

or continues in such employment.”); see also Jeannont, 118 N.H. at 602. receive such benefits vests at the time one becomes a governmental employee compensation, they form a part of the employment contract, and the r ight to vested. See id. (“Because [sick leave] benefits constitute a part of an employee’s including the benefit set forth in section 33.064(B)(2) (pre - 2008 amendment) — the MCO in effect prior to 2008, their accrued compensation benefits — once each defendant attained permanent employee status under the version of defendants became permanent employees prior to the 2008 amendment. Thus, [¶41] The trial court found, and neither party disputes, that the

compensation in lieu of wages earned.” Gilman, 126 N.H. at 449. compensation for services rendered. Such payment is in the nature of deferred the terms of the employment, is not a mere gratuity, but constitutes purposeful.” (emphasis added)). This benefit, therefore, as it is “authorized in legislative body used each word advisedly, and deem s all omissions to be municipal ordinance, [a court] begins with the text, presumes that the Municipal Corporations § 20:48, at 250 (3d ed. rev. 2023) (“When interpreting a the employee to reimburse the City”); see also 6 E. McQuillin, The Law of credit. Stankiewicz, p. 15 156 N.H. at 593 (“nowhere in the ordinance does it require to reimburse the City prior to the reinstatement of the employee’s sick leave language in section 33.064(B)(2) (pre - 2008 amendment) requiring the employee 15

benefit. See Gilman, 126 N.H. at 449 (“[T]he employer [c]ould not impair its between the City and the public employees by changing the nature of the the amended version of 33.064(B) clearly impairs the contr actual relationship City restoring their sick leave credit. See Stankiewicz, p. 15 156 N.H. at 593. Thus, defendants would not be required to repay all sick leave benefits prior to the credit; whereas, under section 33.064(B)(2) (pre - 2008 amendment), the leave benefits that they received prior to the City restoring their sick leave (post - 2008 amendment), the defendants would be required to repay all sick [¶47] Here, the parties do not dispute that, under section 33.064(B)

contractual relationship and that the impairment is substantial. is substantial. See id. We conclude that the amended ordinance impairs the amendment) impairs that contractual relationship and whether the impairment amendment), we next consider whether section 33.064(B) (post - 2008 provide the defendants with the right set forth in 33.064(B)(2) (pre - 2008 [¶46] Because we would hold that the City is contractually bound to

Fed’n of Teachers — N.H., 167 N.H. at 301 (quotation omitted). intent of the [City] to be bound to particular contractual obligations.” Am. (pre - 2008 amendment) and section 10.17(B) of the MCO “evince[] the clear conclusion. For the foregoing reasons, we conclude that section 33.064(B)(2) plain language of section 33.020, or its context, supports the majority’s (pre - 2008 amendment) are not protected. We respectfully disagree that the majority’s conclusion that the defendants’ rights under section 33.064(B)(2) interpreted as preserving the sanctity of contract lies at the center of the [¶45] It is, to say the least, ironic that the very provision we have

its employees ’ groups by adopting new ordinances.” Id. at 590. its governance, may not, however, simply alter or abandon valid contracts with thus concluded: “The City, despite its general authority to adopt ordinances for through 33.082 will not apply retroactively. Interpreting section 33.020, we enacted at the same time. Section 33.023 simply directs that sections 33.020 the City’s employment relationship with its employees, id. at 590, were all since sections 33.020 through 33.082, which all pertain to various aspects of Stankiewicz, p. 15 156 N.H. at 590 - 91. That makes sense in the context of the MCO, contracts from complying with the MCO until they are renegotiated.” contracts existing at the time [section 33.023] was enacted and exempts such “section 33.023 is stated in the present tense,” and thus “refers to those language and our prior interpretation of it. As we concluded in Stankiewicz, [¶44] The majority’s interpretation is at odds with the MCO’s plain

this chapter.” are renegotiated to conform with the provisions of §§ 33.020 through 33.082 of contract between the city and employees’ groups unless or until such contracts p. 16 16

particular measure.” legislative judgment as to the necessity and reasonableness of a in reviewing economic and social regulation, courts properly defer to adoption. Unless the State itself is a contracting party, as is customary character appropriate to the public purpose justifying the legislation’s contracting parties is based upon reasonable conditions and is of a “is whether the adjustment of the rights and responsibilities of

identified, the next inquiry: N.H. 460, 472 (2015). If a significant and legitimate public purpose is “significant and legitimate public purpose.” Deere & Co. v. State of N.H., p. 16 168 constitutes a substantial impairment of a contractual relationship” has a [¶50] We next consider whether the “legislative enactment that

defendants. substantially impairs a contractual relationship when applied against the [¶ 49] We conclude that section 33.064(B) (post - 2008 amendment)

rights granted by statute). Seabrook, 145 N.H. 536, 539 - 40 (2000) (holding that a CBA cannot negate vested right, such right cannot be abrogated by a CBA. See Fowler v. Town of benefit set forth in section 33.064(B)(2) (pre - 2008 amendment) constitutes a vested right in section 33.064(B)(2) (pre - 2008 amendment). Given that the however, is premised on the assumption that the defendants do not have a version of section 33.064(B) as the law of the contract. This argument, because each defendant was party to a CBA that adopted the post - 2008 amendment) against the defendants is not unconstitutionally retroactive [¶48] The City argues that application of section 33.064(B) (post - 2008

provide such benefi ts.” Jeannont, 118 N.H. at 601 - 02. employment with the State in reliance on the State’s representations that it will employment, and an employee accepts an offer of employment or continues in the State can attract qualified persons to enter and remain in State only be considered substantial.”). Sick leave benefits “are a mean s by which likely wreak havoc on the finances of many of the affected workers and can contract: the promise of certain work for certain income. Its impact would bill under consideration here im pairs the very heart of an employment N.H. at 601; see also Opinion of the Justices (Furlough), 135 N.H. at 634 (“The integral part of the employee’s contemplated compensation.” Jeannont, 118 defendants’ ab ility to receive sick leave benefits, which, as noted above, “are an from it.”). Moreover, this impairment is substantial because it restricts the compensation was earned so as to divest the rights of those already benefiting obligation to pay [sick leave] benefits by changing its sick leave policy after the p. 17 17

by officers who became permanent employees prior to its enactment. legitimate public purpose derived from preventing perce ived “double - dipping” section 33.064(B) (post - 2008 amendment) does not have a significant and amendment) appears to equate the two benefits. Therefore, we conclude that (quotation omitted). It is anomalous that section 33.064(B) (post - 2008 Appeal of N.H. Dep’t of Health and Human Servs., 145 N.H. 211, 213 (2000) “accidental injury or death arising out of and in the course of employ ment.” unsatisfactory common law remedies in tort” when employees suffer compensation law is “remedial in nature, designed to substitute for Gilman, 126 N.H. at 449. In contrast, New Hampshire’s workers’ “Payment for sick leave . . . constitutes compensation for services rendered.” dipping.” Sick leave benefits are distinct from workers’ compensation benefits. compensation awards without paying back the sick leave time, are “double resolution of their workers’ compensation claims, and then receive workers’ defendants in this case, who receive sick leave benefits while they await [¶ 52] We do not agree with the City’s suggestion that employees, like the

determination of workers’ compensation eligibility. credit, to repay to the City all sick leave benefits that they received pending is achieved by requiring employees, prior to the restoration of their sick leave the amended ordinance, at least in part, is to prevent “double - dipping,” which standard of review applies. See id. at 654. The City argues that the purpose of [¶ 5 1] Here, the City is party to the contract, and thus, the heightened

78 (2001)). (quoting Lower Village Hydroelectric Assocs. v. City of Claremont, 147 N.H. 73, never been sufficient of itself to permit states to abrogate contracts.’” Id. at 654 656 - 58, because “‘financial necessity, though superficially compelling, has Indeed, we have previously invalidated legislation as unconstitutional, id. at Id. at 655 (quoting Opinion of the Justices (Furlough), 135 N.H. at 635). protection at all.” as an important public purpose, the Contract Clause would provide no obligations whenever it wanted to spend the money for what it regarded when taxes do not have to be raised. If a State could reduce its financial A governmental entity can always find a use for extra money, especially necessity is not appropriate because the State’s self - interest is at stake. “[C]omplete deference to a legislative assessment of reasonableness and Joint Underwriting Assoc., 159 N.H. 627, 6 54 (2010). We have explained that: to legislative acts affecting such contracts.” Tuttle v. N.H. Med. Malpractice heightened review is warranted and courts generally accord minimal deference 412 - 13 (1983)). “In cases where the State is itself a party to the contract, Id. (quoting Energy Reserves Group v. Kansas Power & Light, 459 U.S. 400, p. 18 18

respectfully dissent. City and its denial of summary judgment for the defendants. Accordingly, we would reverse both the trial court’s grant of summary judgment in favor of the (post - 2008 amendment) as applied to the defendants is unconstitutional. We [¶ 55] For the reasons outlined above, we conclude that section 33.064(B)

terms of employment.”). ability of an employer to modify rights which have vested under the previous modifying the terms of employment. Rather, this opinion merely limits the 126 N.H. at 450 (“[T]his opinion should not be read to preclude employers from retroactively applied. See Stankiewicz, 156 N.H. at 593 - 94; see also Gilman, our interpretation — did not necessarily imply that any amendments would be Stankiewicz — that the City was free to amend its ordinance if it disagreed with following our instructions in Stankiewicz. However, our directive in [¶ 54] Finally, t he City argues that, in amending the ordinance, it was

Reserves Group, 459 U.S. at 412 n.14)); see also Tuttle, 159 N.H. at 656 - 58. cannot simply walk away from its financial obligations.’” (quoting Energy (Furlough), 135 N.H. at 635 (“‘When a State itself enters into a contract, it the justification for doing so is purely economic. See Opinion of the Justices defendants’ vested rights and demanding repayment of sick leave benefits when however, for the City to prevent perceived “double - dipping” by infringing on the prior to restoration of sick leave credit. It is neither reasonable nor necessary, sick leave benefits that they received while awaiting an eligibility determination section 33.024(B) (post - 2008 amendment), the defendants must first repay the now attempts to prevent “double - dipping” by demanding that, pursuant to workers’ compensation benefits, without any repayment requirement. The City allows for restoration of their sick leave credit once they are deemed eligible for the benefit set forth in section 33.064(B)(2) (pre - 2008 amendment), which defendants here. As discussed above, the defendants possess a vested right in this purpose are reasonable and necessary when applied against the ordinance is significant and legitimate, we disagree that the means to achieve [¶ 53] Even assuming that the City’s stated purpose for the amended