Petition of Donovan, 91-289
| Decision Date | 16 April 1993 |
| Docket Number | No. 91-289,91-289 |
| Citation | 137 N.H. 78,623 A.2d 1322 |
| Parties | Petition of David DONOVAN d/b/a Donovan Group Home (New Hampshire Division of Mental Health and Developmental Services and Division of Public Health Services). |
| Court | New Hampshire Supreme Court |
David H. Bownes, Laconia, by brief and orally, for petitioner.
John P. Arnold, Atty. Gen. (Daniel J. Mullen, Asst. Atty. Gen., on the brief and orally), for the State.
The petitioner seeks review of the dismissal of his administrative appeals from decisions to revoke his license and certification to operate the Donovan Group Home, a residential facility for the developmentally disabled. We hold that the presiding officer erred in dismissing the petitioner's appeals and therefore reverse.
The petitioner, David Donovan, began operating the Donovan Group Home in Alton in 1984. On August 3, 1990, representatives of State agencies conducted a site inspection. As a result of that inspection, the division of elderly and adult services (DEAS) made findings of physical and emotional abuse of three residents of the home. The August 22 notice to Donovan informed him of the DEAS findings and advised him that he could challenge the findings through an administrative appeal, which Donovan requested on August 29, 1990.
On August 23, 1990, the division of mental health and developmental services (DMHDS) notified Donovan that his certification would be revoked based on twelve violations of DMHDS regulations, and based on the reports of abuse "substantiated" by the DEAS. The DMHDS notice informed Donovan that he could appeal the decision to revoke his certification; Donovan requested an administrative hearing on August 29, 1990. On August 24, 1990, the division of public health services (DPHS) notified Donovan that his license to operate a sheltered care facility/community residence was revoked and ordered him to cease and desist operations. The revocation was based on the results of the site inspection on August 3, 1990, during which twelve violations were reported. The August 24 notice to Donovan informed him that the order would become final unless he requested an adjudicative hearing, which he requested on September 8, 1990.
The three separate appeals from the decisions of the DEAS, the DMHDS, and the DPHS were assigned to a single presiding (hearing) officer. After a prehearing conference to establish how the appeals would proceed, the presiding officer issued an order indicating that the appeal of the DEAS action would be heard before the appeals of the DMHDS and DPHS actions. The hearing on the DEAS findings of abuse was held in December 1990. On March 1, 1991, the presiding officer issued a decision that upheld the findings of abuse. Donovan filed a petition for rehearing, which was denied, and then sought review of the decision in the Merrimack County Superior Court.
On April 12, 1991, the DMHDS and the DPHS joined in a motion to dismiss Donovan's appeals of the revocation of his license and certification. The divisions argued that because their actions were based in part on the DEAS findings of abuse, which were upheld by the presiding officer, their actions in revoking Donovan's license and certification should likewise be upheld. They also argued that Donovan's appeals were moot since both his license and certification had expired, and he did not reapply. Donovan did not respond to the motion to dismiss. On May 8, 1991, the presiding officer informed Donovan that his appeals had been dismissed. Donovan's motion for reconsideration was denied, and this appeal followed.
DPHS findings can be appealed pursuant to RSA 151:8, which provides for appellate review under RSA chapter 541. There is no statutory provision for appellate review of DMHDS findings; thus, a party must invoke this court's jurisdiction by a petition for writ of certiorari. See Petition of Breau, 132 N.H. 351, 357, 565 A.2d 1044, 1048 (1989). Under this procedural dichotomy, the standard of review of the separate divisions' findings differs only slightly. Compare id. at 357, 565 A.2d at 1048 with RSA 541:13 (1974). Accordingly, in this case, we will overturn the divisions' finding if it is unreasonable or unlawful.
Donovan contends that the presiding officer erred in dismissing his appeals because the DEAS findings of abuse were not yet final since they were being reviewed by the superior court. Donovan also disputes the claim that his appeals were moot because the DMHDS and DPHS made findings independent of the DEAS findings that would greatly inhibit his ability to reapply for a license and certification in the future if they are allowed to stand unchallenged. The presiding officer's decision did not include "findings of fact and conclusions of law," so we are not in a position to know whether he based his decision on the divisions' res judicata argument, or on the mootness argument. See RSA 541-A:20 (Supp.1992). Accordingly, we will address both arguments.
The DMHDS and DPHS contend that the physical and emotional abuse documented by each division in taking action...
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...entered with respect to some but not all parties, appeal of order is generally interlocutory); Petition of Donovan d/b/a Donovan Group Home, 137 N.H. 78, 81, 623 A.2d 1322, 1324 (1993) (res judicata improper where no final judgment because appeal Other courts, however, have reached the oppo......
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In re Johnson
...comment f (1982). But see, e.g., Sandoval v. Superior Court, 140 Cal.App.3d 932, 936–937, 190 Cal.Rptr. 29 (1983); Petition of Donovan, 137 N.H. 78, 81, 623 A.2d 1322 (1993). We are persuaded by the majority rule. 427 Mass. at 200–201, 692 N.E.2d 39.C. Analysis Applying the foregoing princi......
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