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Appeal of Erica Blizzard

March 9, 2012

APPEAL OF ERICA BLIZZARD (NEW HAMPSHIRE DEPARTMENT OF SAFETY)


The opinion of the court was delivered by: Dalianis, C.J.

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.

Department of Safety

Argued: November 16, 2011

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 270- E: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.

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 270- E: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 ...


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