Lamarche v. McCarthy
| Decision Date | 31 December 2008 |
| Docket Number | No. 2008–355.,2008–355. |
| Citation | 965 A.2d 992,158 N.H. 197 |
| Court | New Hampshire Supreme Court |
| Parties | Nancy J. LAMARCHE v. Stephanie A. McCARTHY. |
Simpson & Mulligan, P.L.L.C., of Lebanon (Gary Apfel on the brief and orally), for the plaintiff and defendant.
Howard J. Zibel and Karen J. Borgstrom, of Concord (on the brief), for the intervenor The Office of Mediation and Arbitration.
Kelly A. Ayotte, attorney general (Suzanne M. Gorman, senior assistant attorney general, on the brief and orally), for the State of New Hampshire, as amicus curiae.
This case is before us on an interlocutory transfer from Belknap County Superior Court (Smukler, J.). The facts as presented in the joint interlocutory appeal statement are as follows. Nancy Lamarche and Stephanie McCarthy are plaintiff and defendant respectively in a personal injury matter. At a structuring conference for that case, the defendant orally moved for relief from the mandatory fifty dollar fee under Superior Court Temporary Rule 170 ( Rule 170 ). The trial court ruled that requiring the parties to pay fifty dollars to enter mandatory alternative dispute resolution (ADR) violates Part I, Article 14 of the New Hampshire Constitution.
The Office of Mediation and Arbitration (OMA) moved to intervene "solely for the purpose of bringing forward the constitutional question for determination by this court." The trial court granted the motion to intervene. After pro bono counsel was secured to represent the interests of both the plaintiff and defendant on appeal, the trial court granted the motion for interlocutory transfer, adding two additional questions. Thus, pursuant to Supreme Court Rule 8, the superior court transferred three questions:
As to the first question, we answer that the OMA has standing to intervene in this case.
The plaintiff and defendant make two arguments against the OMA's standing: first, because the OMA is a party for the first time on appeal, the trial court never had the opportunity to rule on the issues and correct any error; and second, the OMA has no right or direct interest in the personal injury suit, and rather than intervening, the OMA should have filed a declaratory judgment action on the constitutionality of Rule 170 or instigated a small claims action to recover the fees.
Superior Court Rule 139 states, in pertinent part: "Any person shown to be interested may become a party to any proceeding in equity on his petition briefly setting forth his relation to the cause." "The right of a party to intervene in pending litigation in this state has been rather freely allowed as a matter of practice." Brzica v. Trustees of Dartmouth College, 147 N.H. 443, 446, 791 A.2d 990 (2002) (quotation omitted). A trial court should grant a motion to intervene if the party seeking to intervene has a right involved in the trial and a direct and apparent interest therein. Snyder v. N.H. Savings Bank, 134 N.H. 32, 35, 592 A.2d 506 (1991). It is within the trial court's discretion to grant intervenor status. Samyn–D'Elia Architects v. Satter Cos. of New England, 137 N.H. 174, 177, 624 A.2d 970 (1993). We will not overturn the trial court's decision unless we are persuaded that the court's exercise of discretion is unsustainable. See Brzica, 147 N.H. at 446, 791 A.2d 990.
We are not persuaded by the plaintiff and defendant's argument that the trial court had no opportunity to rule on the issue and correct any error. It is true that litigants cannot generally raise issues for the first time on appeal. "[O]rdinarily, trial courts should have an opportunity to rule upon issues and to correct errors before they are presented to the appellate court." State v. Brum, 155 N.H. 408, 417, 923 A.2d 1068 (2007). In this case, however, the trial court had the opportunity to rule upon Rule 170's constitutionality.
We also disagree with the plaintiff and defendant that the OMA's ability to bring a small claims suit requires dismissal. Although the availability of other remedies weighs against granting intervenor status, it is not an absolute bar. See Blue Cross/Blue Shield v. St. Cyr, 123 N.H. 137, 141–42, 459 A.2d 226 (1983) (). Here, the OMA's purpose is not to collect the fees. Rather, its sole reason for intervening is to determine Rule 170's constitutionality. Thus, the fact that there are other means of recovering the fee does not preclude the OMA's standing to bring this appeal.
Nor does the fact that the OMA has no direct or apparent interest as a party in the subject matter of the underlying personal injury litigation bar it from intervening. Indeed, this case closely parallels Petition of Keene Sentinel, 136 N.H. 121, 612 A.2d 911 (1992). In that case, a newspaper intervened in a divorce proceeding to gain access to a party's prior divorce records, which were sealed. Keene Sentinel, 136 N.H. at 125, 612 A.2d 911. The parties to the divorce objected, arguing that the newspaper had no interest in the divorce itself. Id. We held that, "[p]rocedurally, this case more appropriately should have been initiated by a petition for access to the sealed records." Id. We went on, however, to say that "the newspaper's choice of procedure should not jeopardize its pursuit of a potentially meritorious claim," and permitted it to intervene. Id. The same is true in this case. The OMA more appropriately should have initiated a petition for declaratory judgment or instigated a small claims action. Its choice of procedure, however, should not jeopardize its pursuit of a potentially meritorious claim. It was, therefore, not an unsustainable exercise of discretion to grant the OMA intervenor status in this case.
As to the second question, we answer that Rule 170's temporary nature does not mean that the case could not have been transferred. No party on appeal argues that Rule 170's temporary nature precludes an interlocutory appeal.
As to the final question, we answer that the trial court erred in holding that the administrative fee violates Part I, Article 14 of our constitution. The party challenging a rule's constitutionality bears the burden of proof. Cf. Smith v. N.H. Dep't of Revenue Admin., 141 N.H. 681, 693, 692 A.2d 486 (1997) (). Because the issue before us is one of constitutional law, we review it de novo. State v. MacElman, 154 N.H. 304, 307, 910 A.2d 1267 (2006). We interpret rules to avoid conflict with constitutional rights wherever reasonably possible. Cf. State v. Pierce, 152 N.H. 790, 791, 887 A.2d 132 (2005) ( a statute).
We adopted Rule 170 in response to the legislature's creation of the OMA. See RSA 490–E:1 (Supp.2008). The OMA was created to develop, promote and administer ADR solutions in all courts. RSA 490–E:2. The legislature created the "mediation and arbitration fund" to "support the operation of the [OMA]." RSA 490–E:4, I. Among the sources of funding are "moneys collected by the [OMA] from fees," such as the fee at issue in this case. RSA 490–E:4, I(c). Rule 170, in turn, governs ADR in the superior court, including the collection of fees.
Rule 170 requires that "[a]ll writs of summons, transfers of actions from the district court, and such equity cases as the court may deem or the parties may agree are suitable, shall be assigned to ADR, with [certain] exception [s]." Super. Ct. R. 170(A)(1); 170(A)(2) (exemptions). After filing, "parties shall confer and select an ADR process...." Id. 170(B)(1). Parties can choose either a paid or a volunteer neutral from approved lists. Id. 170(B)(2).
If the parties choose a volunteer neutral, both parties are Id. 170(B)(2)(c). The underlying case here was referred to ADR and thus subject to the fifty dollar fee.
Part I, Article 14 of the New Hampshire Constitution provides: "Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it...." Article 14 "was designed to abolish, not fixed fees, prescribed for the purpose of revenue, but the fines which were anciently paid to expedite or delay law proceeding and procure favor." State v. Basinow, 117 N.H. 176, 178, 371 A.2d 458 (1977) (quotation omitted). It "is basically an equal protection clause in that it implies that all litigants similarly situated may appeal to the courts both for relief and for defense under like conditions and with like protection and without discrimination." Follansbee v. Plymouth Dist. Ct., 151 N.H. 365, 367, 856 A.2d 740 (2004) (quoting Basinow, 117 N.H. at 177, 371 A.2d 458).
Our prior decisions have generally affirmed the validity of administrative or filing fees in the absence of the appearance of impropriety or the deprivation of a fundamental right. See Follansbee, 151 N.H. at 365, 856 A.2d 740; Christy & Tessier v. Witte, 126 N.H. 702, 495 A.2d 1291 (1985) ; Basinow, 117 N.H. at 176, 371 A.2d 458. In each case we "first determine the appropriate standard of review by examining the purpose and scope of the State-created...
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...406 A.2d 704 (1979) ; see also Bleiler v. Chief, Dover Police Dep't, 155 N.H. 693, 697-98, 927 A.2d 1216 (2007) ; Lamarche v. McCarthy, 158 N.H. 197, 204, 965 A.2d 992 (2008). Below strict scrutiny is intermediate scrutiny, which is triggered when the challenged classification involves impo......