___________________________

Merrimack

No. 97-787

KERRY ASMUSSEN & a.

v.

COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF SAFETY & a.

December 28, 2000

Stein, Volinsky & Callaghan, P.A., of Concord (Peter G. Callaghan on the brief, and Robert A. Stein orally), for the intervenors.

Philip T. McLaughlin, attorney general (Christopher P. Reid, senior assistant attorney general, on the brief, and Douglas N. Jones, assistant attorney general, orally), for the defendants.

Kerry P. Steckowych, of Goffstown, and George E. Wattendorf, of Dover, on the brief and orally, as amicus curiae for the New Hampshire Chief's of Police Association, Inc. and the New Hampshire District Court Prosecutor's Association.

BROCK, C.J. The defendants, the Commissioner of the New Hampshire Department of Safety and the Director of the New Hampshire Division of Motor Vehicles, appeal a decree of the Superior Court (Brennan, J.) granting a petition for declaratory judgment regarding policies affecting administrative license suspensions. See RSA 265:91-a, :91-b (1993 & Supp. 1999). We affirm in part, reverse in part, vacate in part, and remand.

We summarize the pertinent facts found by the trial court or supported by the record. In December 1992, the assistant commissioner of the department of safety (department) held a meeting with hearings examiners from the department's bureau of hearings (bureau) who preside over administrative license suspension (ALS) hearings. The assistant commissioner, who has ultimate supervisory authority over the bureau, see RSA 21-P:5, II (1988 & Supp. 1999), called the meeting to brief the hearings examiners on the ALS statute, which was to become effective in January 1993, see Laws 1992, 258:15, to insure that the new law would be effectively and efficiently administered. He was concerned that hearings examiners had been conducting hearings under prior law with the formalities of a court proceeding, and that police officers were losing cases on technical grounds. The administrator of hearings, who supervises hearings examiners and is directly responsible to the assistant commissioner, see RSA 21-P:13, I (1988), attended the meeting and later distributed a memorandum memorializing the assistant commissioner's instructions. The memorandum was marked, "PRIVILEGED AND CONFIDENTIAL."

At the meeting, the assistant commissioner reminded the hearings examiners that police officers are often intimidated when they represent the State and the defendant has retained private counsel. Thus, he instructed them not "to act like judges" and not to conduct hearings as if they were courtroom trials. Specifically, he instructed that hearsay "is admitted" in administrative hearings, and that the rules of evidence do not apply. He also advised that they could ask questions in hearings so long as they remained impartial. They were not to dismiss hearings automatically on technical grounds such as failure of the police officer to state that the road where the driver was arrested is a public way. See RSA 265:82 (Supp. 1999). Rather, they were to reopen the hearing first and allow the police officer an opportunity to introduce the required proof. Moreover, they were instructed to ask questions to develop the evidence and assist the officer in meeting his or her burden of proof. If a police officer whose presence was required at the hearing failed to appear, see RSA 265:91-b, I(c) (1993), the hearings examiners were directed to continue the hearing and notify the officer to appear. The assistant commissioner also instructed them not to dismiss a hearing for a deficiency in the sworn statement of the arresting officer, see RSA 265:91-a, I, :91-b, II, as the testimony of the police officer cured the defect, and he advised them that the department was involved in legislative efforts to eliminate the sworn statement requirement. He further instructed them to keep their reports brief as the statute provided for de novo review in the superior court, see RSA 265:91-d (1993) (amended 1994, 1999) (current version at RSA 265:91-e (Supp. 1999)); RSA 263:75 (1993) (amended 1995), and he advised them that legislation was pending to provide for record review in the superior court, see RSA 263:75 (Supp. 1999) (statute now provides for record review). Finally, the assistant commissioner reminded the hearings examiners that they were classified employees subject to assignment. These instructions were never formally adopted under the administrative procedures act (APA). See RSA ch. 541-A (1997 & Supp. 1999).

Subsequently, some hearings examiners expressed concern as to whether the instructions were binding directives, and whether the instructions should remain confidential. The administrator of hearings in January 1993 issued memoranda clarifying that the December 1992 instructions were binding, and that they were to be considered confidential legal advice. When the assistant commissioner later came to believe that some of the hearings examiners were communicating ex parte with members of the defense bar about the instructions, he convened a meeting in February 1993, at which he told the hearings examiners that if they could not carry out department policies, they could resign, but they could not undermine the policies. One hearings examiner was removed from ALS hearings until he could be "retrained," after it was discovered that he may have engaged in ex parte communications with defense counsel and had made what the assistant commissioner believed to be inappropriate disclosures of the instructions in hearings. That hearing officer had previously objected to the instructions within the department.

This case also involves the department's application of a 1993 Superior Court (Manias, J.) order holding that before the department could suspend a driver's license through the ALS process, the driver's blood alcohol content (BAC) must exceed the legal limit, see RSA 265:91-a, I, by the testing equipment's margin of error, namely 0.015 percent. Hamilton v. Flynn, No. 93-E-213 (Merrimack County Superior Court July 30, 1993). The department did not appeal Hamilton and notified all hearings examiners of the decision, but did not publish or adopt a formal rule codifying Hamilton.

Several individuals subject to potential ALS suspensions filed a petition for declaratory judgment requesting that the court order the department to make available all unpublished guidelines, and declare the guidelines void under the APA. A number of parties intervened, and current counsel for the intervenors (who was not counsel on the original petition) filed a motion to expand the petition, alleging that the "use of secret, unwritten and unpromulgated rules" in ALS hearings violated not only the APA, but the right to due process, see N.H. CONST. pt. I, art. 15, and the right to be tried by an impartial judge, see N.H. CONST. pt. I, art. 35. The intervenors requested that the court declare the instructions null and void, admonish the hearings examiners to be impartial, and remand all hearings presently on appeal back to the department for review as to whether the directives were applied.

Over time, as the plaintiffs and intervenors settled their cases with the department, they withdrew and new parties intervened. More than thirty parties ultimately joined the action. In December 1993, the State requested that the trial court deny additional motions to intervene, arguing that "[t]he revolving door procedure of intervenors places an undue burden on the state." In February 1994, the trial court ordered a halt to additional intervenors. Presently, none of the original plaintiffs are party to the suit, and only six intervenors remain.

After a trial on the merits, the Superior Court (Brennan, J.) found that the ALS law had been administered with actual prejudice and that the regulatory, statutory, and due process rights of the intervenors had been impaired. The court concluded that the administrator of hearings had interpreted the December 1992 instructions as "directives" binding on the hearings examiners. The court further found:

To the extent that any of [the] directives were inconsistent with statutory provisions or that they substantively changed any rules and were binding on "persons outside the agency," they should have been published either as rules under the APA, or included as "staff memoranda," a part of the hearing officer's records under RSA 541-A:31, VI(h).

The court found that the December 1992 instructions were "rules" that were neither promulgated nor published pursuant to the APA, and that under RSA 541-A:33, VI, "[d]rivers subject to ALS suspensions should have notice of the directives contained within the [December 1992] memorandum." The court also found that the instructions and subsequent communications constituted ex parte communications prohibited by RSA 541-A:36. Additionally, the court found that the department had set a new internal policy in response to the Hamilton decision and, as such, drivers subject to the ALS law were entitled to "notice by rule that a BAC of .09 (formerly .10) or higher, is required to establish cause for an administrative suspension."

Although the court found no evidence that the assistant commissioner intended to interfere with the due process rights of those subject to the ALS statute, the court concluded that the instructions limited the discretion of hearings examiners. The court also found that the assistant commissioner exercised improper command influence through the directives, his reminder that hearings examiners were subject to assignment, his statements at the February 1993 meeting, and his "discipline" of the hearing officer for inappropriate discussions with defense counsel. Those communications and actions, in the court's view, "carrie[d] the inappropriate threat that questioning unpublished directives could result in undesirable assignments."

The court granted most of the intervenors' requests for findings of fact and rulings of law, including a ruling that "[t]he hearings held by the Department of Safety Bureau of Hearings under the ALS law violate RSA 541-A, Part I, Article 15 of the N.H. Constitution and the 14th Amendment to the United States Constitution and Part I, Article 35 of the N.H. Constitution." The court denied, however, all the intervenor's requests for relief except attorney's fees, instead fashioning its own remedies. The court did not fashion any remedy regarding the illegal and unconstitutional use of the "instructions" other than to declare them ineffective. See Petition of Pelletier, 125 N.H. 565, 571, 484 A.2d 1119, 1123 (1984). Rather, the court focused on the policy instituted in response to Hamilton and ordered that "the Department of Safety must promulgate the Hamilton policy as a rule, and all drivers who tested .08, or .10 under the old law, after the November 9, 1993 date of the policy, must have their ALS suspensions vacated." The court awarded attorney's fees, finding that the litigation conferred a substantial benefit on all drivers subject to the ALS procedure. This appeal followed.

On appeal, the State argues that the superior court erred in: (1) ruling that the intervenors had standing to pursue the action; (2) ordering the department to "promulgate" a rule codifying the Hamilton decision; (3) ruling that the assistant commissioner's supervision constituted improper rulemaking, improper command influence, and ex parte communications; and (4) awarding attorney's fees.

As a preliminary matter, the intervenors contend that the appeal should be dismissed because the State failed to file its appeal within thirty days of a decision on the merits. See Sup. Ct. R. 7. The superior court issued its initial order on February 24, 1997, and a series of motions were filed by both parties immediately thereafter. Among those motions was the intervenors' motion for prospective relief, requesting that the court direct the department to report periodically its compliance with the court's order and to reopen any case in which there was a good faith basis to believe that department policy unfairly affected the outcome. The court denied that motion in an order issued on October 10, 1997, and the State filed this appeal on Monday, November 10, 1997.

The intervenors contend that because the State did not file its appeal within thirty days of the court's order on the merits, the appeal should be dismissed. We disagree. "Timely filed post-trial motions stay the running of the appeal period for all parties to the case in the lower court including those not filing such motions." Sup. Ct. R. 7 (1). The intervenors' motion for prospective relief was timely filed with the superior court, see Super. Ct. R. 59-A; thus the running of the appeal period was stayed until October 10, 1997. This case is distinguishable from Germain v. Germain, 137 N.H. 82, 84, 623 A.2d 760, 761 (1993), where we held that in a bifurcated divorce proceeding an order on the divorce decree and property settlement constituted a final decision on the merits even though child custody and permanent support issues remained undetermined. The prospective relief sought by the intervenors was not severable from the decision rendered in February 1997, cf. Jenkins v. G2S Constructors, 140 N.H. 219, 223, 665 A.2d 354, 357 (1995), and thus the appeal period did not begin to run until October 10, 1997.

The State contends that the intervenors lacked standing to bring their claims in a declaratory judgment action pursuant either to RSA 541-A:24 (1997) or RSA 491:22 (1997). The intervenors counter that they demonstrated standing sufficient to maintain the action solely under RSA 541-A:24.

The action was initially commenced as a challenge to the validity of certain unpromulgated "rules" under the predecessor to RSA 541-A:24, which provided:

The validity or applicability of a rule may be determined in an action for declaratory judgment in the Merrimack county superior court if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question.

RSA 541-A:7 (1974). The intervenors later broadened the attack, however, to challenge the constitutionality of the defendants' administration of ALS hearings. Because declaratory relief is unavailable absent statutory authorization, see Wuelper v. University of N.H., 112 N.H. 471, 473, 298 A.2d 747, 749 (1972), the parties' arguments require that we first determine the statutory authority for the intervenors' claims.

RSA 541-A:24 provides a mechanism for challenging "[t]he validity or applicability of a rule" under the APA. While we do not foreclose the availability of RSA 541-A:24 to challenge the constitutionality of an administrative rule, cf. Town of Orford v. N.H. Air Resources Comm., 128 N.H. 539, 540, 522 A.2d 979, 981 (1986), we decline to construe the statute to permit the broader constitutional challenge to the State's administration of ALS hearings in this case. Indeed, notwithstanding their argument on appeal, the intervenors contended below that their "constitutional claims are not brought under the APA. We brought them as a general declaratory judgment claim." Accordingly, we will treat the intervenors' claim that the unpromulgated rules were invalid under the APA as having been brought under RSA 541-A:24, and their constitutional claims as having been brought pursuant to RSA 491:22, the general declaratory judgment statute.

At the outset we reject the State's argument that RSA 541-A:24 is unavailable unless the challenged "rule" has been officially promulgated under the APA. "In matters of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." State v. Hatt, 144 N.H. ___, ___, 740 A.2d 1037, 1038 (1999) (quotation omitted). "We will construe statutes so as to effectuate their evident purpose," Quality Carpets v. Carter, 133 N.H. 887, 889, 587 A.2d 254, 255 (1991) (quotation omitted), and will not apply a construction that nullifies, to an appreciable extent, that purpose, see State v. Kay, 115 N.H. 696, 698, 350 A.2d 336, 338 (1975).

The APA defines "rule" in part as a "regulation, standard or other statement of general applicability adopted by an agency to . . . prescribe or interpret an agency policy, procedure or practice requirement binding on persons outside the agency." RSA 541-A:1, XV. We have interpreted this definition to include rules that have not been properly promulgated under the APA, see Petition of Pelletier, 125 N.H. at 571, 484 A.2d at 1123, and the State offers no persuasive argument why this interpretation should not apply to "rule" as it is used in RSA 541-A:24. Moreover, the evident purpose of RSA 541-A:24 is to allow challenges to the validity of an administrative rule in advance of its application. It would be an unduly narrow interpretation of the statute to limit actions under RSA 541-A:24 to those instances where an agency has followed the APA, thereby allowing agency administrators to create de facto rules with impunity. See 5 R. Weibusch New Hampshire Practice, Civil Practice and Procedure