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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Department of Safety No. 2011-187 APPEAL OF ERICA BLIZZARD (New Hampshire Department of Safety) Argued: November 16, 2011 Opinion Issued: March 9, 2012 Moir & Rabinowitz, PLLC, of Concord (James H. Moir on the brief and orally), for the respondent. Michael A. Delaney, attorney general (Kevin H. O'Neill, assistant attorney general, on the memorandum of law and orally), for the New Hampshire Department of Safety. DALIANIS, C.J. The respondent, Erica Blizzard, appeals a decision of the New Hampshire Department of Safety (DOS) suspending her privilege to operate a boat for three years. See RSA 270-E:17 (2010). We affirm. The following facts are drawn from the record. In the early hours of the morning on June 15, 2008, the respondent, carrying two passengers, was piloting a motorboat on Lake Winnipesaukee. There was almost no visibility due to dark and inclement weather conditions. As the respondent later told investigators, she was unable to see the bow of her boat. She was operating the boat at eighteen to twenty miles per hour, unsure of her location and

checking her depth gauges, when the boat collided with an island. The collision killed one passenger and seriously injured the respondent and the second passenger. As a result of the collision, the respondent was charged with boating while intoxicated and negligent homicide. A jury found her guilty of negligent homicide, but not guilty of boating while intoxicated. Thereafter, DOS sought to suspend the respondent's privilege to operate a boat pursuant to RSA 270-E:17, which authorizes DOS to revoke or suspend operating privileges for any violation of RSA chapters 270, 270-A, 270-B or 270-E. A hearing was held, and the hearing examiner found that the respondent had violated RSA 270:29-a (2010), which makes it a misdemeanor to "operate a power boat upon any waters of the state in a careless and negligent manner or so that the lives and safety of the public are endangered." As a result, the hearing examiner suspended the respondent's privilege to operate a boat for three years. After DOS denied the respondent's motion for rehearing, she appealed pursuant to RSA 541:6 (2007). See RSA 21-P:13, II (2000) ("Unless otherwise provided by law, all . . . appeals [from DOS hearings] shall be held in accordance with RSA [chapter] 541."). The respondent's appeal raises the following issues: (1) whether DOS lacks authority to suspend boat-operation privileges because it has failed to promulgate associated regulations; (2) whether RSA 270-E:17 delegates legislative authority in violation of Part I, Article 37 of the State Constitution; and (3) whether the hearing notice complied with Part I, Article 15 of the State Constitution. Our standard for reviewing agency decisions is set forth by statute: such decisions "shall not be set aside or vacated except for errors of law, unless [we are] satisfied, by a clear preponderance of the evidence before [us], that such order is unjust or unreasonable." RSA 541:13 (2007). We address the issues raised by the respondent's appeal in turn. I. Failure to Adopt Regulations The respondent argues that DOS was required to promulgate regulations relative to the administration of RSA chapter 270-E and, because DOS failed to do so, it lacked authority to suspend her operating privileges. See RSA 270E:12, XII (2010) (requiring DOS to adopt rules relative to "matters related to the administration of [RSA chapter 270-E]"). Although DOS has procedural rules governing revocation hearings, it has never adopted specific, substantive rules governing the suspension and revocation of boat-operating privileges. See N.H. Admin. Rules, Saf-C ch. 200. It argues that such rules are unnecessary for it to exercise suspension and revocation authority pursuant to RSA 270-E:17.

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We have consistently held that "promulgation of a rule pursuant to the [Administrative Procedure Act] . . . is not necessary to carry out what a statute demands on its face." Nevins v. N.H. Dep't of Resources and Economic Dev., 147 N.H. 484, 487 (2002). Thus, although we have occasionally noted that an agency "should . . . adopt rules," Appeal of Behavior Science Institute, 121 N.H. 928, 935 (1981), or even that it "was required to promulgate rules," Nevins, 147 N.H. at 487, it has been nearly a century since we last held that failure to adopt rules, by itself, divested a regulatory body of its authority. See Hanover Precinct v. Atkins, 78 N.H. 308, 310-11 (1916). Our modern cases focus upon whether the result of the agency's failure to adopt rules "was both unfair and inconsistent with [the statute granting authority]." Appeal of Behavior Science Institute, 121 N.H. at 935 (emphasis added). Therefore, when considering whether an agency's failure to adopt rules requires that its decision be overturned, we must first examine whether the statute is "sufficiently detailed to effectuate its purpose" without agency regulations. Nevins, 147 N.H. at 487. If the statute lacks sufficient detail on its face, then an agency must adopt rules supplying the necessary detail. See id. Next, we determine whether the result was unfair by examining whether the complaining party "suffered harm as a result of the lack of [required] rules." Id. at 488. In this case, we assume without deciding that RSA 270-E:17 lacks sufficient detail to effectuate its purpose, but uphold the respondent's suspension because she does not argue that the lack of rules harmed her. The respondent has facially attacked RSA 270-E:17 under multiple theories, but has never argued that she suffered prejudice. She does not assert that she lacked notice that her behavior could result in suspension of her operating privilege. Nor does she argue that if DOS had promulgated regulations, it would not have imposed the suspension. Without some argument that harm resulted, the absence of regulations does not, in itself, require us to overturn DOS's suspension decision. See id. The respondent also contends that, without additional rules, RSA 270E:17 violates her due process rights under Part I, Article 15 of the State Constitution. To the extent the respondent claims the statute is unconstitutionally vague on its face, we reject her argument. When a vagueness claim does not involve a fundamental right, a facial attack on the challenged statutory scheme is unwarranted, and the respondent does not argue that the privilege to operate a boat is a fundamental right. State v. MacElman, 154 N.H. 304, 307 (2006). II. Delegation We next address whether RSA 270-E:17 unconstitutionally delegates legislative authority. The constitutionality of a statute is a question of law, which we review de novo. N.H. Dep't of Envtl. Servs. v. Marino, 155 N.H. 709,

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714 (2007). In reviewing a statute, we presume it to be constitutional and we will not declare it invalid except upon inescapable grounds. Id. Because the respondent argues under the State Constitution only, we base our decision upon it alone, and refer to federal law merely to aid in our analysis. See id. at 715. When interpreting a statute, "[w]e . . . examin[e] the plain language of the statute using the ordinary meanings of the words to determine legislative intent." N.H. Dep't of Resources and Economic Dev. v. Dow, 148 N.H. 60, 63 (2002). The relevant section of RSA 270-E:17 provides: In addition to any other authority provided by law, the commissioner is hereby authorized to revoke or suspend any registration issued pursuant to this chapter or any privilege to operate a boat, or both, upon a showing that: I. The owner has violated any provision of this chapter, RSA 270, RSA 270-A, RSA 270-B, or any rules adopted under these chapters, or has allowed another person to violate any of these laws or rules. The respondent first contends that RSA 270-E:17 violates Part I, Article 37 of the State Constitution because it impermissibly delegates legislative authority to DOS. Under the separation of powers article of the New Hampshire Constitution, the General Court may not create and delegate duties to an administrative agency if its commands are in such broad terms as to leave the agency with unguided and unrestricted discretion in the assigned field of its activity. Id. Thus, we have ruled unconstitutional statutes that lack either a declared policy or a prescribed standard. Id. To avoid the charge of unlawfully delegated legislative power, a statute must lay down basic standards and a reasonably definite policy for the administration of the law. Id. For example, in Marino, a statute delegated authority to the New Hampshire Department of Environmental Services to impose construction conditions that, "in the opinion of the commissioner, more nearly meet the intent of [RSA chapter 483-B, the Comprehensive Shoreland Protection Act], while still accommodating [a property owner's] rights." RSA 483-B:10, I (2001) (amended 2011). We held that the statute complied with the separation of powers article because it impliedly incorporated the basic standards set forth in RSA 483-B:9 and reasonably definite policies set forth in RSA 483-B:1 and :2. Marino, 155 N.H. at 716. In this case, mindful of our obligation to construe statutes to comport with constitutional requirements when possible, see In re Guardianship of Reena D., 163 N.H. ___, ___ (decided December 28, 2011), we construe RSA 270-E:17 to incorporate, by implication, the standards and policies in RSA chapters 270, 270-A, 270-B and 270-E because the statute limits DOS's

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suspension power to individuals who violate a provision contained in those chapters. Thus, to determine whether RSA 270-E:17 unlawfully delegates legislative authority, we examine whether the policies and standards in the incorporated chapters render the statute constitutional. Turning first to the "reasonably definite policy" requirement, the legislature has set forth, in detail, the policies underlying RSA chapter 270, which include: (1) maintaining "public safety," RSA 270:1, I (2010); (2) "protection of property," id.; (3) "maintaining the residential, recreational and scenic values which New Hampshire public waters provide," RSA 270:1, II (2010); (4) "maintain[ing] . . . safe and mutual enjoyment of a variety of uses," id.; (5) "promotion of our tourist industry," id.; (6) "protection of environment and water quality," id.; and (7) "nutur[ing] of . . . threatened and endangered species," id. We hold that these policies are reasonably definite, and, therefore, satisfy the policy requirement for legislative delegations of authority. As to "basic standards," the impliedly incorporated chapters specifically define dozens of distinct violations that potentially trigger suspension of operating privileges. These standards are more than basic

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