Guy J. v. Commissioner, New Hampshire Dept. of Educ.

• Decision Date: 13 July 1989
• Docket Number: No. 87-413,87-413
• Parties: , 56 Ed. Law Rep. 1245 GUY J., et al., v. COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF EDUCATION, et al.
• Court: New Hampshire Supreme Court

Page 397

565 A.2d 397

131 N.H. 742, 56 Ed. Law Rep. 1245

GUY J., et al., v. COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF EDUCATION, et al.

No. 87-413.

Supreme Court of New Hampshire.

July 13, 1989.

Rehearing Denied Nov. 15, 1989.

Disabilities Rights Center, Inc., Concord (Ronald K. Lospennato, orally and on the brief, and Eileen L. Ordover on the brief), for plaintiffs.

Stephen E. Merrill, Atty. Gen. (David S. Peck, Asst. Atty. Gen., on the brief, and Martha Pyle Farrell, Atty., orally), for the State.

SOUTER, Justice.

The plaintiffs bring this appeal from the dismissal by the Superior Court (Cann, J.; Robert Hinchey, Esq., Master) of their petitions for writs of mandamus or injunctions to order the commissioners of the State Departments of Education and Health and Human Services to agree on an adequate "procedure for settling disputes." RSA 186-C:7-a, III(e) (Supp.1988), between the two departments about their respective responsibilities to serve "educationally handicapped children," RSA 186-C:7, I (Supp.1988). We affirm.

The Division of Mental Health and Developmental Services of the State Department of Health and Human Services (HHS), see RSA 126-A:3, III (Supp.1988), has responsibility for ensuring that services are provided to the developmentally disabled, RSA 171-A:1 (Supp.1988), defined as those subject to handicapping disabilities originating before the age of twenty-two and "attributable to mental retardation" or other listed conditions, RSA 171-A:2, V (Supp.1988). HHS may discharge its responsibility by contracting with so-called area agencies to provide the actual services. Id., :2, I-b (Supp.1988); :18 (Supp.1988).

The State Department of Education (DOE) has administrative responsibility to ensure that local school districts "provide a free and appropriate public education for all educationally handicapped children," RSA 186-C:1 (Supp.1988), :13 (Supp.1988), who are identified as individuals at least three but less than twenty-one years old, suffering from such conditions as mental retardation, emotional disturbance, or physical handicap, who for such reasons need special instruction, RSA 186-C:2, I and IV (Supp.1988). DOE is authorized to act through a special education bureau to help the school districts meet their obligations to the educationally handicapped under both State and federal law. RSA 186-C:3-a (Supp.1988).

Because a given person may be both developmentally disabled and educationally handicapped, the responsibilities of HHS and DOE may overlap. The consequent obligation of each department to avoid duplication of services and expenses raises the danger that an applicant eligible for either developmental or educational services, or arguably for both, may be denied services entirely because each department points to the other as responsible. With the apparent object of minimizing this risk, the legislature has directed the commissioners of the two departments to "enter into a comprehensive, cooperative special education agreement," RSA 186-C:7-a, I (Supp.1988), "which shall include a procedure for settling disputes regarding its administration or the financial and programmatic responsibilities of each department," id., :7-a, III(e) (Supp.1988).

The two plaintiffs before us are both developmentally disabled and educationally handicapped. Each has applied for what the parties speak of as a residential placement at public expense, each has been turned down, and each claims to be the victim of a jurisdictional dispute between the two departments.

In the case of Guy J., the local school district denied a request to provide a residential placement for the then sixteen-year-old plaintiff, as did the area agency, one of whose officials later testified that the school district "may in fact be financially responsible" for the requested placement. The same witness, however, testified that HHS would fund the placement, through the area agency, if the legislature would appropriate funds for that purpose as the department had requested.

In the second case, that of James S., the eighteen-year-old plaintiff was ordered by his family to leave their house, and, at the time this proceeding began, lived in an apartment. The local school district denied funds for his residential placement on the ground that any justification for providing residential services was unrelated to his educational need. The local area agency denied a request for placement on the ground that it had no funds. When these decisions were brought to the attention of HHS, its commissioner responded that DOE was responsible for educational placement of a person of the plaintiff's age, and that the school district's refusal should be appealed. The area agency's decision was appealed first, however, although the result is not a matter of record here. In the meantime, the plaintiff did appeal the school district's decision to DOE, whose hearing officer, see N.H.Admin.R., Ed. 1127.02(a)(2), affirmed the denial below.

At the commencement of the relevant administrative proceedings in the case of James S., the two commissioners had not agreed upon the procedure to resolve inter-departmental disputes required by RSA 186-C:7-a (Supp.1988). When James S.'s counsel requested them to adopt some mechanism to satisfy their statutory obligation, they responded by adopting the following appeal scheme. A party aggrieved by such an inter-departmental disagreement, who has first exhausted each department's administrative appeals process (including a so-called due process hearing required of DOE by the federal Education of the Handicapped Act (EHA), 20 U.S.C. § 1415(c)), may request a resolution of the jurisdictional dispute by a "joint decision" of the appropriate division and bureau, respectively, of the two departments. If the division and bureau cannot reach a decision, the request is to be referred to the two commissioners for their joint determination.

James S.'s counsel considered this mechanism inadequate, and, when no substitute was forthcoming, filed the instant petition for mandamus or injunction to compel the commissioners to adopt a more satisfactory procedure. That petition was joined with a virtually identical counterpart filed in the case of Guy J., and the two were heard jointly by the superior court, denied, and appealed together to this court. Each petition and appeal raises two claims: that the commissioners' agreement fails to satisfy their obligation under § 7-a, and that it violates paramount federal law.

As a threshold matter, the record dissuades us from disposing of the cases without reaching the merits of the claims raised. We do not decide whether a person could have a sufficiently cognizable interest to seek an order requiring the commissioners to address their statutory obligations, even though the petitioner might not be in a position to invoke a § 7-a dispute-resolution mechanism immediately. Nor do we pursue the issue whether there can be a dispute within the meaning of § 7-a when one department (DOE) does not claim the other is responsible, and the other (HHS) declines to provide the service for lack of funds, among other more or less clear reasons.

We should also note that we have not questioned whether the cases have slipped into mootness as fiscal years have passed and the terms of the relevant governmental appropriations may have changed. If such considerations were sufficient to render the cases moot, the issues raised would probably recur, since both plaintiffs are presently under age twenty-one and potential applicants for services from the two departments, and would just as probably evade resolution. See Royer v. State Dept. of Empl. Security, 118 N.H. 673, 675, 394 A.2d 828, 829 (1978).

That having been said, we are still constrained to recognize that, insofar as the petitions seek writs of mandamus, the law requires their dismissal. Although a writ of mandamus is the proper remedy for a public officer's refusal to perform a ministerial act, Rockhouse Mt. Property Owners Assoc. v. Town of Conway, 127 N.H. 593, 602, 503 A.2d 1385, 1390-91 (1986), if "an official is given discretion to decide how to resolve an issue before him, a mandamus order may require him to address the issue, but it cannot require a particular result," id. (citations omitted). When the official has addressed the issue, mandamus will lie only to vacate the result of action taken arbitrarily or in bad faith. See Guarracino v. Beaudry, 118 N.H. 435, 437 387 A.2d 1163, 1165 (1978); Bois v. Manchester, 104 N.H. 5, 9, 177 A.2d 612, 615 (1962).

This case is governed by the rules limiting the mandamus power over an officer with discretionary responsibility, since the obligation under § 7-a to devise a mechanism for resolving disputes clearly calls for the commissioners to exercise judgment and discretion. Because they have addressed their responsibilities by agreeing on a procedural mechanism, and because there is no claim of arbitrary or bad-faith conduct in agreeing on the mechanism they have adopted, a writ of mandamus would serve no legitimate function. Nor do the plaintiffs fare any better by asking in the alternative for injunctive relief, there being no substantial distinction between mandamus and a mandatory injunction directing the performance of official public duties. See Stern v. South Chester Tube Co., 390 U.S. 606, 609, 88 S.Ct. 1332, 1334, 20 L.Ed.2d 177 (1968) (distinction formalistic); Orange County v. Dept. of Transportation, 46 N.C.App. 350, 384-85, 265 S.E.2d 890, 912 (1980) (in actions against public officials, distinction is without a difference), review denied, 301 N.C. 94 (1980).

The plaintiffs are not, however, without any means to review the agreement's conformity with State and federal law. Where a plaintiff has made a showing that the issues raised express a genuine controversy with the defendant, see Hermer v. Dover, 105 N.H. 108, 110, 192 A.2d 624, 625-26 (1963), as is the case here, we have...