OLSON v. TOWN OF SALEM & a.
No. 2014-0417
Supreme Court of New Hampshire
February 18, 2016
168 N.H. 566
law set down by the Legislature. Rather, the Town . . . decided to oppose the Plaintiffs’ citizen-initiated petitions.” Olson also argues: “Without authority, printing the recommendations of local government officials directly on the ballot — between the question and the circle to fill in — is mere inches away from having the Town pre-fill the ballots with the votes it desires.” Additionally, Olson asserts: “[T]he Town . . . has no lawful authority to include recommendations on the ballots.” Olson further contends: “[T]his is not a case where there is no statute to analyze — the Town[‘s] . . . actions are wholly without any statutory authority.”
Olson does not argue that, even if the selectboard acted lawfully under the pertinent statutes, it nonetheless violated the plaintiffs’ constitutional rights. Because Olson‘s constitutional claims are based upon a faulty premise, we reject them.
Any issue that Olson raised in his notice of appeal, but did not brief, is deemed waived. In re Estate of King, 149 N.H. 226, 230 (2003).
Affirmed.
DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
APPEAL OF TOWN OF SALEM & a. (New Hampshire Bureau of Securities Regulation); TOWN OF SALEM & a. v. LOCAL GOVERNMENT CENTER, INC. & a.
Nos. 2014-0650, 2014-0736
Supreme Court of New Hampshire
Argued: September 10, 2015
Opinion Issued: February 18, 2016
McLane, Graf, Raulerson & Middleton, P.A., of Manchester, filed no brief, for respondents Local Government Center Property-Liability Trust, LLC and New Hampshire Municipal Association Property-Liability Trust, Inc.
Ramsdell Law Firm, PLLC, of Concord (Michael D. Ramsdell on the brief and orally), for respondents Health Trust, Inc.; Local Government Center Health Trust, LLC; and LGC-HT, LLC.
Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann on the brief and orally), for the Towns of Salem, Temple, Auburn, Bennington, Meredith, Northfield, Peterborough, and Plainfield.
City Solicitor‘s Office, of Concord (James W. Kennedy, city solicitor, and Danielle L. Pacik, deputy city solicitor, on the brief), for plaintiff City of Concord.
Ramsdell Law Firm, PLLC, of Concord (Michael D. Ramsdell on the brief and orally), for the defendants.
HICKS, J. In the first of these consolidated appeals, the Towns of Salem, Temple, Auburn, Bennington, Meredith, Northfield, Peterborough, and Plainfield (the Towns)
In the second appeal, the Towns and the City of Concord (collectively, the plaintiffs) appeal an order of the Superior Court (McNamara, J.) granting the motion to dismiss filed by, among others,* defendants Local Government Center, Inc.; New Hampshire Municipal Association Property-Liability Trust, Inc.; New Hampshire Municipal Association, LLC; Health Trust, Inc.; LGC-HT, LLC; LGC-PLT, LLC; Local Government Center Healthtrust, Inc.; Local Government Center Property-Liability Trust, LLC; and Local Government Center Real Estate, Inc. (collectively, the civil action defendants). We consolidated these related civil and administrative cases on appeal. For ease of reference, we will, where applicable, collectively refer to the administrative respondents and the civil action defendants as LGC. We affirm in part, vacate in part, and remand.
The following facts were found by the trial court or the presiding officer, were recited by us in the related case of Appeal of Local Government Center, 165 N.H. 790 (2014), or appear in the record before us. The first appeal, challenging the administrative order, involves subsequent proceedings in the matter before us in Appeal of Local Government Center. The identities of, and the relationships between and among, the respondents in that appeal, as well as the factual and procedural background of the
administrative action against them, are described in Appeal of Local Government Center and repeated here only as necessary. Generally, those respondents are or have been involved in the operation of pooled risk management programs pursuant to
In 2011, the secretary of state commenced an adjudicative proceeding prompted by a staff petition filed by the Bureau alleging that the administrative respondents had violated
I. Each pooled risk management program . . . shall:
. . . .
(c) Return all earnings and surplus in excess of any amounts required for administration, claims, reserves, and purchase of excess insurance to the participating political subdivisions.
See id. at 798. The August 16 Order required that Health Trust and Property Liability Trust return excess funds of $33.2 million and $3.1 million, respectively, to those political subdivisions that were members of those programs on August 16, 2012. The August 16 Order also directed the Bureau and the administrative respondents to enter into an “agreed-upon plan” to distribute excess funds to members that had participated in the program at any time after June 10, 2010; however, if those parties failed to reach an agreement, the order required distribution only to Health Trust‘s and Property Liability Trust‘s current members. The parties failed to reach agreement, and the excess funds were ordered to be distributed to current members.
The administrative respondents appealed the August 16 Order to this court. See Appeal of Local Gov‘t Ctr., 165 N.H. at 790, 793-94. We affirmed in part, vacated portions of the order not relevant here, and remanded for further proceedings. See id. at 809, 810, 814. Thereafter, the Bureau filed a motion for entry of default order against the administrative respondents
alleging noncompliance with the August 16 Order. The issues related to that motion were resolved by a consent decree incorporated into the presiding officer‘s order. During that proceeding, the Towns were permitted to intervene in order to be heard on their proposal to participate, as former members of Health Trust, in the further distribution of approximately $17.1 million in excess funds. Their motion proposing such a distribution was denied, and the Towns now appeal.
Meanwhile, the plaintiffs filed suit against the civil action defendants in superior court. Their amended complaint alleged that they had been members of pooled risk management programs run by the civil action defendants at various times, but were no longer members on August 16, 2012. Therefore, they did not participate in the distribution of excess funds. They alleged:
As a result of the manner by which payment was made under the administrative order, the plaintiffs hereby request the Court to award money damages pursuant to common law for their recovery. . . . [S]ince no monies have yet flowed back from LGC to these nine plaintiff communities, they are now forced to seek justice pursuant to their common law rights, wholly separate and apart from any administrative action pursued by the Secretary of State.
The plaintiffs’ amended complaint pleaded, among other things, claims for breach of contract and implied-in-fact contract, and breach of fiduciary duty. The civil action defendants filed a motion to dismiss, which the trial court granted. The trial court concluded that: (1) the remedies for overcharges afforded by
The plaintiffs argue that the trial court erred in: (1) construing
Statutory interpretation is a question of law, which we review de novo. In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.
Appeal of Local Gov‘t Ctr., 165 N.H. at 804 (citations omitted). The statute provides, in relevant part:
I. Notwithstanding any other provision of law, the secretary of state shall have exclusive authority and jurisdiction:
(a) To bring administrative actions to enforce this chapter.
(b) To investigate and impose penalties for violations of this chapter, including but not limited to:
(1) Fines.
(2) Rescission, restitution, or disgorgement.
The plaintiffs argue that “[t]he statute merely refers to the Secretary‘s exclusive right to bring administrative actions, investigate, and impose penalties for violations.” They then contend that the trial court‘s interpretation fails to account for the emphasized terms, which “act as limits on the exclusivity of the secretary of state‘s authority and jurisdiction.” “At no point in the statute,” the plaintiffs argue, “does the text express that the Secretary of State‘s exclusive administrative power abrogates the right of individuals or corporations to bring common law or statutory actions in a court of law, outside of an administrative setting.” In support of this argument, they rely upon the doctrine that this court “will not construe a
statute as abrogating the common law unless the statute clearly expresses such an intention.” Case v. St. Mary‘s Bank, 164 N.H. 649, 655 (2013) (quotation omitted).
The plain language of
Count I in the plaintiffs’ complaint alleged that “[t]he plaintiffs were in a contractual relationship with the LGC defendants, due both to the participation and membership agreements between the parties, as well as the implied-in-fact contract by operation of the governing statute, RSA chapter 5-B” (emphasis added), and that the defendants breached those contracts by “failing to return surplus funds on an annual basis.” Count II alleged that the defendants, as trustees of Property Liability Trust and Health Trust, stood in a fiduciary relationship with the plaintiffs and that they breached their fiduciary duties by: (1) “failing to return to the plaintiffs, the amounts of surplus and earnings not needed for administration, claims, reserves, and purchase of excess insurance, in violation of RSA 5-B:5” (emphasis added); and (2) by failing to return surplus funds during the administrative proceedings against them. The claims alleging an implied-in-fact contract and a violation of
We hold that a common law contractual claim for the return of surplus funds as alleged by the plaintiffs is inextricably entwined with
Accordingly, we conclude that the plaintiffs’ contract claim falls within the ambit of the secretary of state‘s exclusive jurisdiction and is remediable solely through
The plaintiffs nevertheless argue that “[t]he
Our holding above is not inconsistent with this provision.
The plaintiffs also assert that “[g]overnment regulation and common law causes of action coexist in a wide range of contexts.” They cite a single example: that “the power
The plaintiffs also cite legislative history to support their interpretation of
claims, we also need not address the plaintiffs’ challenge to the court‘s alternative rulings based upon LGC‘s compliance with an administrative order.
We now turn to the Towns’ appeal from the presiding officer‘s denial of their request to participate in the distribution of excess funds. Our standard of review is set forth in
The plaintiffs first argue that the presiding officer‘s decision is unlawful because it is contrary to
The “Pooled Risk Management Program” statute does not make provision for any past or former member of a pooled risk management program.
RSA 5-B: 5, I(c) provides only for returns to “participating political subdivisions,” not any past or former participating political subdivisions. Applying rules of statutory construction considering the statute as a whole and assigning a word‘s ordinary meaning in interpreting the statute, the more reasonable interpretation is that the word “participating” is a present [participle] attached to its subject, “political subdivisions.” A participle, i.e. a verb used as an adjective, in this instance indicates . . . tense. That tense is the present tense.
The plaintiffs argue that “[e]ven if the term ‘participating members’ is interpreted to mean only currently participating
order requires the return of funds or property in the alternative, this order requires compliance with these provisions as restitution or disgorgement pursuant to
Either of the remedies purportedly used could involve repayment of the wrongfully held funds to the parties from whom the defendants obtained those funds. See, e.g., Pools by Murphy v. Dept. of Consumer Pro., 841 A.2d 292, 299 (Conn. Super. Ct. 2003) (noting that “restitution is commonly defined as the return or restoration of some specific thing to its rightful owner or status,” but can also refer to disgorgement or compensation for injury (quotation and brackets omitted)); Frank Shop v. Crown Cent. Petroleum Corp., 564 S.E.2d 134, 140 (Va. 2002) (describing disgorgement as giving up something on compulsion by law “with the amount disgorged awarded to the party damaged by the illegal act“). Thus, to the extent the presiding officer concluded that he lacked the authority to penalize a violation of
Affirmed in part; vacated in part; and remanded.
DALIANIS, C.J., and LYNN, J., concurred.