In re Kilton

• Decision Date: 31 December 2007
• Docket Number: No. 2007–245.,2007–245.
• Citation: 156 N.H. 632,939 A.2d 198
• Court: New Hampshire Supreme Court
• Parties: Petition of Grant KILTON.

156 N.H. 632

939 A.2d 198

Petition of Grant KILTON.

No. 2007–245.

Supreme Court of New Hampshire.

Argued: Nov. 13, 2007.

Opinion Issued: Dec. 31, 2007.

New Hampshire Legal Assistance, of Claremont and Concord (Jonathan P. Baird and another, on the brief, and Mr. Baird orally), for petitioner.

Kelly A. Ayotte, attorney general (Jill A. Desrochers, attorney, on the brief, and Rosemary Wiant, attorney, orally), for respondent.

BRODERICK, C.J.

The petitioner, Grant Kilton, has petitioned for a writ of certiorari, see Sup.Ct. R. 11, challenging the denial by the respondent, the New Hampshire Department of Health and Human Services (department), of his application for benefits under the Aid to the Permanently and Totally Disabled (APTD) program. See RSA 167:6, VI (2002). We affirm.

I

The record supports the following facts. In April 2005, the petitioner applied for benefits under the APTD program, which is one of various public assistance programs administered by the department. See Baker v. City of Concord, 916 F.2d 744, 745 (1st Cir.1990). Pursuant to RSA 167:6, VI, a person is eligible for APTD benefits "who is between the ages of 18 and 64 years of age inclusive; is a resident of the state; and is disabled as defined in the federal Social Security Act, ... except that the minimum required duration of the impairment shall be 48 months." Disability is determined by reference to "the standards for ‘substantial gainful activity’ as used in the Social Security Act." RSA 167:6, VI.

The department denied the petitioner's application for APTD benefits in mid-October because his impairment failed to meet "the severity required" and would not prevent him "from performing substantial gainful activity for 48 consecutive months." Specifically, the notice of denial informed the petitioner:

You have been denied the medical eligibility for Aid to the Permanently & Totally Disabled (APTD) category of eligibility for NH Medicaid. NH Medicaid requires that you have an impairment that meets or equals the same level of severity as that established for SSI/ SSDI eligibility and that the impairment(s) prevent substantial gainful activity for 48 consecutive months. ( RSA 167:6, VI) You do not have an impairment that meets the severity required nor will your impairment prevent you from performing substantial gainful activity for 48 consecutive months.

The notice also referred to medical records, which indicated that, while the petitioner suffers from generalized anxiety disorder and depression, these conditions should remit with counseling and medication, and that he had no cognitive impairment that would prevent him from working in his prior job as a machine operator or assembler. Moreover, the notice of denial noted that the petitioner's prognosis for returning to work was within a year or less, thus, falling short of the forty-eight-month durational requirement for APTD benefits. Further, the notice stated, in pertinent part: "If you disagree with this decision, you have the right to appeal and ask for a fair hearing. You may represent yourself or be represented by others including legal counsel, at the appeal hearing."

The petitioner timely requested a fair hearing. The form on which he did so stated:

You may represent yourself or be represented by others, including legal counsel. If you need free legal counsel, consult your telephone directory or District Office for the New Hampshire Legal Assistance office nearest you. Contact your representative as quickly as possible to avoid unnecessary delay. THE DIVISION WILL NOT PAY YOUR LEGAL FEES.

In November, the department sent the petitioner a notice of hearing, scheduling the hearing for February 16, 2006. This notice provided, in pertinent part: "Each party has the right to be represented by an attorney, however, the cost of representation shall be at the party's expense. Whether you have an attorney or not, each party must comply with the mandatory pre-hearing disclosure requirements. (See attached Frequently Asked Questions )."

The "Frequently Asked Questions" material included the following information about a claimant's right to an attorney: "You may represent yourself, be represented by a friend, relative, or other person, or may be represented by an attorney at your own expense[;]" and "You do not need an attorney, however, you may want one to protect your interests and rights. The laws and rules are the same whether or not you have an attorney." The "Frequently Asked Questions" attachment also included a list of organizations to assist individuals or to provide them with a referral for legal counsel. This list included numerous offices of New Hampshire Legal Assistance (NHLA). See N.H. Admin. Rules, He–C 203.04(a)(2).

The petitioner represented himself at the February hearing, although his case manager accompanied him for support. The department was also not represented by counsel. A registered nurse, testifying for the department as a medical witness, explained the process by which the petitioner's application was denied. Specifically, she testified that a medical review team examined his application to determine: (1) whether he was currently engaged in substantial gainful activity; (2) whether he had alleged a severe impairment; (3) whether there was documentation to support such an allegation; and (4) whether his impairments met the forty-eight-month durational requirement. She further testified that based upon documents in the file, the review team determined that the petitioner's impairments (anxiety and depression) did not meet the durational requirement because, with antipsychotic medication, his impairments "immediately [a]meliorate[ ]."

The petitioner questioned the nurse briefly. The presiding officer then asked the petitioner a number of questions "to help [him] tell [his] story." The petitioner testified that since the department had denied his application, he had been hospitalized for anxiety and depression "three or four times." Because the petitioner had identified, but did not have possession of records that the presiding officer believed might be relevant, she indicated that she would hold the record open for sixty days to permit the petitioner to submit additional information and to allow the department to submit further information in response, if any.

On April 26, 2006, soon after the sixty days expired, NHLA informed the department by letter that it now represented the petitioner and asked the department to reconvene the hearing so that NHLA could represent him. In early May, the department denied the request, stating that the record was now closed and that granting the request "would only further delay the already too lengthy appeal process."

Approximately three months later, on August 10, 2006, the presiding officer issued her final decision affirming the initial decision to deny the petitioner's application for benefits. The petitioner, through counsel, moved for reconsideration, asserting, among other things, that the department had failed to notify him adequately of his right to seek free legal counsel. On March 9, 2007, the presiding officer denied the petitioner's motion for reconsideration, and this petition for writ of certiorari followed.

II

"The only judicial review of a fair hearings decision issued by the [department] is by petition for a writ of certiorari." Petition of Walker, 138 N.H. 471, 473, 641 A.2d 1021 (1994). Review on certiorari is an extraordinary remedy, usually available only in the absence of a right to appeal, and only at the discretion of the court. Petition of Chase Home for Children, 155 N.H. 528, 532, 926 A.2d 287 (2007). Our review of an administrative agency's decision on a petition for certiorari is limited to determining whether the agency has acted illegally with respect to jurisdiction, authority or observance of the law or has unsustainably exercised its discretion or acted arbitrarily, unreasonably or capriciously. Id. We exercise our power to grant such writs sparingly and only where to do otherwise would result in substantial injustice. Id.

III

The petitioner argues that his federal and state constitutional rights to due process were violated because he received inadequate oral and written notice of his right to seek free legal representation. See U.S. CONST. amend. XIV ; N.H. CONST. pt. I, art. 15. We first address the petitioner's claims under the State Constitution, citing federal opinions for guidance only. See State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983). "This court is the final arbiter of the due process requirements of the State Constitution." In re Father 2006–360, 155 N.H. 93, 95, 921 A.2d 409 (2007) (quotation omitted).

Part I, Article 15 of the State Constitution provides, in pertinent part: "No [person] shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." "[T]he law of the land is synonymous with due process of law." Bragg v. Director, N.H. Div. of Motor Vehicles, 141 N.H. 677, 678, 690 A.2d 571 (1997) (quotations omitted).

To determine whether particular procedures satisfy the requirements of due process, we typically employ a two-prong analysis. Appeal of Town of Bethlehem, 154 N.H. 314, 328, 911 A.2d 1 (2006). Initially, we ascertain whether a legally protected interest has been implicated. See id. ; see also Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). We then determine whether the procedures provided afford appropriate safeguards against a wrongful deprivation of the protected interest. Appeal of Town of Bethlehem, 154 N.H. at 328, 911 A.2d 1.

A

The department contends that the petitioner is not entitled to due process protection because he has no legally protected property interest in obtaining APTD benefits. We will assume, without deciding, that the petitioner had a...