138 N.H. 159 | N.H. | 1993
Memorandum Opinion
On October 14,1993, the petitioners filed an appeal by petition purportedly pursuant to RSA 541:6 (1974) from a fair hearings decision of the New Hampshire Division of Human Services. Because of questions regarding the timeliness of the filing, the petitioners were ordered to file a memorandum on that issue. We conclude that the appeal should be treated as a petition for writ of certiorari, and dismiss it as untimely filed.
On August 2, 1993, the division of human services issued its fair hearings decision denying medical assistance benefits to Dorothy E. under the old age assistance program because her resources were
The sole means of obtaining judicial review of a fair hearings decision of the division of human services is by a petition for writ of certiorari. See Wentworth-Douglass Hosp. v. N.H. Dept. of Health & Welfare, 131 N.H. 364, 366, 553 A.2d 311, 312 (1988). Although the petitioners have mistaken their remedy by filing an appeal under RSA chapter 541, we will treat the appeal as a petition for writ of certiorari. Petition of Ann Crane, 132 N.H. 293, 298, 564 A.2d 449, 452 (1989). The appropriate period for filing a petition for writ of certiorari from State administrative decisions is the thirty-day time limit imposed by RSA 541:6. Wentworth-Douglass Hosp., 131 N.H. at 366-67, 553 A.2d at 312-13. Here, the decision that petitioners wish to appeal is dated August 2,1993. We must determine whether the certiorari petition, filed on October 14, 1993, is timely.
We begin by considering the effect of the petitioners’ first motion for rehearing. The petitioners cite no rule or statute of the division of human services that provides for rehearing motions to be filed after the issuance of fair hearings decisions, and for purposes of this opinion we shall assume that none exists. Even assuming that the petitioners erroneously moved for rehearing, we note that the division ruled upon the request by denying it, see Appeal of Golding, 121 N.H. 1055, 1058, 438 A.2d 292, 294 (1981), and that the rehearing motion was filed within twenty days after the decision of the division of human services, see RSA 541:3; Sup. Ct. R. 27(1) (in computing time, when last day is a Sunday the period shall extend until end of next day that is not a Saturday, Sunday, or legal holiday). We have recognized that administrative agencies should have a chance to correct their own alleged mistakes before time is spent appealing from them. Appeal of White Mts. Educ. Ass’n, 125 N.H. 771, 774, 486 A.2d 283, 286 (1984); Petition of Gorham School Board, 121 N.H. 878, 880, 436 A.2d 74, 76 (1981). In cases where no agency rule or applicable statute sets a different time limit for seeking rehearing or reconsideration of agency orders or decisions, that policy is furthered by permitting a petitioner, who files a motion for rehearing with a State administrative agency within the analogous twenty-day period set forth in RSA 541:3 and whose motion is acted upon on the merits by the agency, to thereafter file a certiorari petition within thirty days.
We have generally interpreted Supreme Court Rule 7 in a similar fashion. For example, Superior Court Rule 74(b) provides that final judgment shall be entered “where a timely filed motion has been filed after verdict or decree, on the thirty-first day from the date on the Clerk’s written notice that the Court has taken action on the motion.” (Emphasis added.) Supreme Court Rule 7(1) provides that timely filed post-trial motions stay the running of the appeal period for all parties to the case, while untimely filed post-trial motions do not unless the untimeliness is waived within the appeal period by the lower court. Thus, when a party files a motion to reconsider a superior court decree within ten days pursuant to Superior Court Rule 59-A(l), entry of judgment in the superior court is delayed, and the running of the appeal period is stayed, until the motion is decided. See also Super. Ct. R. 73 (ten days to file motion to set aside verdict). Thereafter, pursuant to Superior Court Rule 74, final judgment will enter thirty-one days later unless an appeal is filed. If a second motion for reconsideration is filed from the denial of the first reconsideration order, the second motion will not be a timely-filed post-trial motion, see, e.g., SUPER. Ct. R. 59-A(l) (a motion for post-decision relief shall be filed within ten days of the notice of the decision), and will not prevent the entry of final judgment pursuant to Superior Court Rule 74. Thus, an appeal that is filed in this court within thirty days of the denial of the second reconsideration motion, but not filed within thirty days of the denial of the first mo
The petitioners rely upon Appeal of Golding, 121 N.H. 1055, 438 A.2d 292, as support for excusing their late filing. The court in Golding excused the delay caused by the appellant’s erroneous application for a rehearing before the personnel commission. The court specifically stated, however, that the plaintiffs filed their appeals to this court within thirty days of the denial of the application for rehearing. The petitioners in this case failed to do the same.
Petition dismissed.