2025 N.H. 44, Petition of Dean

declining to recuse himself, w e vacate and remand. conclude that the presiding officer in the adjudicatory proceeding erred by revoking her hunter education volunteer instructor certification. Because we respondent, the New Hampshire Fish and Game Department (department), [¶1] The petitioner, Penny S. Dean, challenges a decision of the

respondent. general (Mark L. Lucas, assistant attorney general, on the brief), for the John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

P enny S. Dean, self - represented party, on the brief.

(New Hampshire Fish and Game Department) PETITION OF PENNY S. DEAN

Citation: Petition of Dean, 2025 N.H 44 Case No. 2024 - 0283 Fish and Game Department

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

(1) the petitioner violated the Instructors’ Code of Conduct and ( p. 2 2) her conduct presiding officer, found that the department sustained its burden of proof that [¶5] Following the merits hearing, the executive director, acting as the

legal standards.” A merits hearing was scheduled for May p. 2 24. a decision based on the evidence presented on the record and the applicable could be fair and impartial, had not prejudged the evidence, and would “make matter.” The executive director denied the petitioner’s motion, stating that he that, according to the record, [he was] one of the . . . decision - makers in this her objection to the executive director “conducting this hearing given the fact conference was held on April 11, 2023. At the outset, th e petitioner reiterated therefore, recuse himself from acting as the presiding officer. A pre - hearing her license, the executive director had prejudged this matter and must, detached hearing officer” and that, by participating in the decision to revoke that “[a] hearing officer is constitutionally required to be a neutral and objecting to the executive director serving as the hearing officer. She argued [¶4] The petitioner requested a hearing. Subsequently, she filed a motion

to request a hearing “before a Presiding Officer of the Department.” suspended,” and she had the right, under the then effective department rules, in any Hunter Education courses as a volunteer Hunter Education instructor is instructor certification is revoked,” her “certification to teach, pla n, or take part The letter notified the petitioner that her “Hunter Education volunteer causing a negative impact on the hunter education program.” (I talics omitted.) contradicting a Law Enforcement officer in regards to public safety laws is safety,” and “[a] Hunter Education I nstructor causing confusion by the interpretation of the law, which is very important in regards to public [¶3] In addition, the letter stated that “the students were confused about

classroom is no place for an argument.” (Quotation and bolding omitted.) unproductive and detrimental and leave the wrong impression” and “[a] or heated disagreements between instructors in front of a class are “Instructors’ Code of Conduct,” which provides that “[o]pen criticism of others petitioner challenged the officer’s interpretation of the law violated the explanation. (Italics omitted.) The letter stated that the manner by which the within 300 feet of a building, the petitioner “openly disagreed with” the officer’s prohibition contained in RSA 644:13 ( p. 2 2016) against discharging a firearm during a conservation officer’s presentation to a class of students regarding the Hunter Education Policy and Procedures.” As grounds, the letter stated that determined . . . that [the petitioner’s] actions violated the NH Fish and Game Winnipesaukee Sportsmen’s Club on September 18, 2022, “it has been based on events that occurred during the Hunter Education Field Day at the department notified the petitioner by letter signed by its executive director that [¶2] The record supports the following facts. On January 5, 2023, the

I. Background p. 3 3

has unsustainably exerc ised its discretion or acted arbitrarily, unreasonably or acted illegally with respect to jurisdiction, authority or observance of the law or decision on a petition for certiorari entails examining whether the agency has Police, 174 N.H. 176, 180 (2021). Our review of an administrative agency’s of right, but rather at the court’s discretion. Petition of N.H. Div. of State [¶9] Certiorari is an extraordinary remedy that is not granted as a matter

pursuant to Supreme Court Rule 11. 528, 5 p. 3 32 (2007). Therefore, we treat the petition as one for certiorari review vehicle for obtaining review. See Petition of Chase Home for Children, 155 N.H. RSA chapter 541 jurisdiction, and a petition for a writ of certiorari is the proper appellate review of the executive director’s decision in this case, we do not have to revoke any such authorization.” Because there is no statutory provision for appeal from a decision of the [department’s executive director] to either grant or authorized to conduct hunter safety classes, and do es not provide for any 214:23 - c simply provides for hunter safety education instructors to be mechanism for judicial review. As the department correctly notes, “RSA [¶8] RSA 214:23 - c (2018), the provision at issue here, provides no

by law. Id. statute, an appeal under the provisions of RSA chapter 541 is not authorized N.H. at 757. Unless some reference is made to RSA chapter 541 in a given determination of every administrative agency in the state. Rye Sch. Dist., 17 p. 3 3 mean that the provisions of RSA chapter 541 do not provide an appeal from the N.H. 753, 757 (2020); see RSA 541:2 (2021). We have interpreted RSA 541:2 to chapter 541 only when so authorized by law. Appeal of Rye Sch. Dist., 173 [¶7] Appeals from administrative proceedings may be taken under RSA

for review. instructor’s credentials,” a petition for a writ of certiorari is the proper avenue appeal from a decision of the Department to revoke a volunteer hunter safety department asserts, however, that “because there is no statute authorizing an filed an appeal here under RSA 541:6 and Supreme Court Rule 10. The [¶6] We first address our jurisdiction over this matter. The petitioner

II. Analysis

review by this court. director denied the petitioner’s motion for rehearing, and the petitioner sought presumed to be handling this matter on a ppeal.” Thereafter, the executive would be highly inappropriate given that the Attorney General’s office would be offer, arguing that “a hearing officer from the Attorney General’s office. . . sitting as the Hearing Officer.” The petitioner did not accept the department’s department consented to a rehearing with “an assistant Attorney General for rehearing requesting, among other things, “a different hearing officer.” The had a negative impact on the Hunter Education Program. The petitioner moved p. 4 4

DONOVAN and COUNTWAY, JJ., concurred.

this opinion. presiding officer’s decision, and remand for further proceedings consistent with officer in the first instance. Accordingly, we grant the petition, vacate the raised by the petitioner in this court should be resolved by a new hearing and we therefore vacate his August 7, 2023 final order. The additional issues himself as the presiding officer in the adjudicatory proceeding of this matter [¶12] We conclude that the executive director erred by declining to recuse

withdrawal as the presiding officer in the adjudic atory proceeding. Id. that he “prejudged the facts” of the case, thereby providing good cause for his charging document, the executive director’s behavior “objectively demonstrates” revoking the petitioner’s certification. By signing what was essentially the volunteer instructor certification,” and signed the January 5, 2023 letter department, “made the decision to terminate [the petitioner’s] hunter education As the presiding officer acknowledged, he, as the executive director of the he or she has prejudged the facts of a case.” N.H. Admin. R., Fis 203.02(b)(2). made statements or engaged in behavior which objectively demonstrates that withdrawal of the presiding officer if, among other things, the officer “[h]as [¶11] T he department’s rules provide that good cause exists for the

preserved. decision to revoke her instructor certification. Accordingly, the argument is the adjudicative hearing as the presiding officer because of his role in the the petitioner objected several times to the executive director’s participation in recuse himself as presiding officer. As set forth above, the record supports that preserved for appellate review and (2) the executive director was not required to punishment.” The department asserts that (1) the petitioner’s argument is not “purported author of the January 5, 2023 letter and decision maker of [her] executive director to act as the presiding officer given that he was the [¶10] The petitioner argues that the department erred by allowing the

result in substantial injustice. Id. power to grant such writs sparingly and only where to do otherwise would capriciously. Chase Home for Children, 155 N.H. at 532. We exercise our