In re Whitman Operating Co.

• Decision Date: 22 September 2021
• Docket Number: No. 2020-0536,2020-0536
• Parties: PETITION OF WHITMAN OPERATING CO., LLC d/b/a Camp Walt Whitman & a. (Governor's Office for Emergency Relief and Recovery)
• Court: New Hampshire Supreme Court

174 N.H. 453

265 A.3d 1229

PETITION OF WHITMAN OPERATING CO., LLC d/b/a Camp Walt Whitman & a. (Governor's Office for Emergency Relief and Recovery)

No. 2020-0536

Supreme Court of New Hampshire.

Argued: June 17, 2021

Opinion Issued: September 22, 2021

Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Ovide M. Lamontagne and Matthew J. Saldaña on the brief, and Ovide M. Lamontagne orally), for the petitioners.

Office of the Attorney General, (Laura E. B. Lombardi, senior assistant attorney general, on the brief and orally), for the Governor's Office for Emergency Relief and Recovery.

HANTZ MARCONI, J.

The petitioners, Whitman Operating Co., LLC d/b/a Camp Walt Whitman, Wicosuta Operating Co., LLC d/b/a Camp Wicosuta, and Winaukee Operating Co., LLC d/b/a Camp Winaukee (collectively, the Camps), challenge a decision of the respondent, the Governor's Office for Emergency Relief and Recovery (the Office for Emergency Relief), to deny their applications for money from the New Hampshire General Assistance and Preservation (GAP) Fund. We affirm.

I. Facts

The relevant facts follow. The Governor established the Office for Emergency Relief pursuant to an April 2020 executive order related to the COVID-19 pandemic. The executive order empowers the Office for Emergency Relief "to assist the Governor and Legislature with and direct State agencies on the management and expenditure of ... emergency relief funds received under" the Coronavirus Aid, Relief, and Economic Security Act of 2020 (the CARES Act). See Pub. L. No. 116-136, 134 Stat. 281 (2020). The executive order establishes a "Legislative Advisory Board" and a "Stakeholder Advisory Board" to work with the Office for Emergency Relief to "develop recommendations for allocation and expenditure of CARES Act emergency relief funds." Pursuant to the executive order, the Governor reviews the Office for Emergency Relief's recommendations and makes any changes he deems necessary before giving his final approval "for allocation and expenditure [of] ... CARES Act emergency relief funds."

In July 2020, the Governor authorized the allocation and expenditure of $30 million of CARES Act funds for the GAP Fund "to provide emergency financial relief to New Hampshire businesses and nonprofit organizations impacted by the COVID-19 pandemic." The Camps applied for GAP funding at the end of July 2020. Their applications were denied on September 10, 2020. The form letters notifying the Camps that their applications had been denied stated that "having high liquid assets both personal and business" was one of "[t]he most common reasons" for denying an application.

Shortly thereafter, the Camps submitted a request for rehearing "pursuant to the requirements set forth in New Hampshire Supreme Court Rule 10 and RSA 541:4." On October 5, 2020, the Office for Emergency Relief declined the request. The Office explained that "[t]he determination of who will receive awards and the proper amounts from the CARES Act funds are ... decisions under the Governor's emergency powers and are not subject to rehearing or appeal under RSA 541." Nonetheless, the Office provided "additional information regarding the GAP Fund," which it hoped would address the Camps’ concerns about why they did not receive awards:

We understand that [the Camps] may have had a financial impact from COVID. That alone, however, was not the basis for the awards from the GAP Fund. The State has had to make many hard decisions about criteria for providing funding. As a result, the State targeted the limited aid available to those entities that do not have other resources to more likely enable them to weather this pandemic crisis. Of note, the financials [the Camps] submitted ... indicated that several of the largest percentage owners have tens of millions in net worth and more significantly, tens of millions in cash liquid assets.

Thereafter, the Camps submitted a "Second Request for Rehearing Pursuant to RSA 541:4," asking the Office for Emergency Relief to grant their applications for GAP funding. The Office for Emergency Relief responded in an October 21 email that, after carefully considering the Camps’ request, its October 5 "response to [the Camps’] original request for rehearing is final," and the Office would not reopen "that decision." The Camps filed the instant appeal on November 20, 2020, under Supreme Court Rule 10 or, alternatively, as a petition for a writ of certiorari under Supreme Court Rule 11.

II. Analysis

A. Subject Matter Jurisdiction

Before considering the merits of the Camps’ appellate arguments, we address the Office for Emergency Relief's assertion that we lack subject matter jurisdiction. "Subject matter jurisdiction is jurisdiction over the nature of the case and the type of relief sought: the extent to which a court can rule on the conduct of persons or the status of things." Appeal of Cole, 171 N.H. 403, 408, 196 A.3d 950 (2018). The Camps contend that we have jurisdiction to decide their case either as an appeal from an administrative proceeding under RSA chapter 541 or as a petition for a writ of certiorari. We conclude that although we lack jurisdiction under RSA chapter 541, we have subject matter jurisdiction to decide this case as a petition for a writ of certiorari.

We first consider whether the Camps’ claims may be brought in this court under RSA chapter 541. Under RSA 541:2, appeals may be taken under RSA chapter 541 only "[w]hen so authorized by law." RSA 541:2 (2021); see Appeal of Rye Sch. Dist., 173 N.H. 753, 757, 249 A.3d 166 (2020). We have interpreted the phrase "only when so authorized by law" to mean "that the provisions of chapter 541 do not provide an appeal from the determination of every administrative agency in the state." Appeal of Rye Sch. Dist., 173 N.H. at 757, 249 A.3d 166 (quotation omitted). "Unless some reference is made to chapter 541 in [a] given statute, an appeal under the provisions of chapter 541 is not authorized by law." Id. (quotation omitted).

The Camps do not identify any statute authorizing an appeal of a decision of the Office for Emergency Relief under RSA chapter 541. Nor are we aware of any such statute. Instead, the Camps argue that "in the absence of an organic statute construing the powers and responsibilities of [the Office for Emergency Relief], ... RSA 541 should apply to provide aggrieved parties a meaningful avenue of appeal from decisions of [the Office for Emergency Relief]." The Camps assert that "[t]his is particularly true given the constrained internal appeal process which [the Office for Emergency Relief] applied with respect to the grant[s] at issue here." However, as the Office for Emergency Relief correctly observes, and as we have previously held, we have no authority to create equitable exceptions to the jurisdictional requirements of RSA chapter 541. See Appeal of Carreau, 157 N.H. 122, 123-24, 945 A.2d 687 (2008) (holding that we could not waive the requirement in RSA 541:6 that an appeal be brought within thirty days after an application for rehearing is denied). As no statute authorizes an appeal under RSA chapter 541 in these circumstances, we have no jurisdiction to review the Office for Emergency Relief's denial of the Camps’ applications for GAP funds under that chapter.

We next consider whether we have original jurisdiction to decide this case as a petition for a writ of certiorari. Relying upon law from other jurisdictions concerning their common law writs of certiorari, the Office for Emergency Relief contends that certiorari review is available only when an administrative body acts in a judicial or quasi-judicial capacity. See St. Botolph Citizens Committee, Inc. v. BRA, 429 Mass. 1, 705 N.E.2d 617, 621 (1999) (observing, in dicta, that "[c]ertiorari is a limited procedure which may be used to correct substantial errors of law committed by a judicial or quasi-judicial tribunal (but not administrative, political, or legislative decisions)"). The Office for Emergency Relief asserts that we lack jurisdiction here because the Office was not acting in a judicial or quasi-judicial capacity when it denied the Camps’ applications for GAP funding. See Appeal of Town of Bethlehem, 154 N.H. 314, 330, 911 A.2d 1 (2006) ("An act is judicial in nature if officials are bound to notify, and hear the parties, and can only decide after weighing and considering such evidence and arguments as the parties choose to lay before them." (quotation omitted)).

We have not previously limited certiorari review to judicial or quasi-judicial acts and decline to do so in this case. See DHB, Inc v. Town of Pembroke, 152 N.H. 314, 317-18, 876 A.2d 206 (2005) (holding that review on certiorari was available to review a planning board's decision not to accept a subdivision application). Our certiorari jurisdiction is confirmed by RSA 490:4. Melton v. Personnel Comm'n, 119 N.H. 272, 277, 401 A.2d 1060 (1979) ; see RSA 490:4 (2010) (providing that the supreme court "may issue writs of certiorari ... to other courts, to corporations, and to individuals"). "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 cases have allowed "some expansion of the conventional scope of the writ of certiorari." Sinkevich v. Nashua, 97 N.H. 262, 264, 86 A.2d 562 (1952). Thus, in DHB, for instance, even though the plaintiff had not sought a writ of certiorari, we concluded that it was available to review the planning board's decision not to accept a subdivision application. DHB, 152 N.H. at 317-18, 876 A.2d 206. We explained that "[o]n a sufficient petition, the question is less the form of the petition than whether there is an error correctable by the court." Id. at 318, 876 A.2d 206. We further explained that certiorari review was necessary because, otherwise, "a planning board could exercise an...