Katherine Frederick v. New Hampshire Department of Health and Human Services

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0156, Katherine Frederick v. New
Hampshire Department of Health and Human Services, the
court on March 12, 2021, issued the following order:

The plaintiff, Katherine Frederick, appeals a decision of the Superior
Court (McNamara, J.) dismissing her wrongful discharge claim against the
defendant, the New Hampshire Department of Health and Human Services
(DHHS), as barred by the statute of limitations. DHHS cross-appeals, asserting
that the trial court erred when it failed to dismiss Frederick’s claim on the
alternative ground that, as a state employee subject to personnel laws and a
collective bargaining agreement, the claim was unavailable to her.
DHHS relatedly argues that, because other remedies for termination are
available to Frederick under the law, her wrongful termination action is not a
cognizable “claim” for the purposes of RSA chapter 541-B, see RSA 541-B:1, II-
a (2007) (defining “claim”), and that, therefore, the trial court lacked subject
matter jurisdiction.

In this case, the court is evenly divided. Two members of the court agree
that the plaintiff’s claim should be dismissed; two members of the court would
reverse the trial court’s dismissal and remand for further proceedings.

As the United States Supreme Court has explained,

in such cases, it is the appellant or petitioner who asks the Court to
overturn a lower court’s decree. “If the judges are divided, the reversal
cannot be had, for no order can be made. The judgment of the court
below therefore stands in full force. It is, indeed, the settled practice in
such case to enter a judgment of affirmance, but this is only the most
convenient mode of expressing the fact that the cause is finally disposed
of in conformity with the action of the court below, and that that court
can proceed to enforce its judgment. The legal effect would be the same if
the appeal, or writ of error, were dismissed.”

Neil v. Biggers, 409 U.S. 188, 192 (1972) (quoting Durant v. Essex Co., 74 U.S.
107, 112 (1869)). Such an affirmance by an evenly-divided court is not entitled
to precedential weight. Id.
 Consistent with the Supreme Court’s settled practice, we also enter a
judgment of affirmance in cases in which the judges are evenly divided. See,
e.g., PK’s Landscaping, Inc. v. N.E. Telephone Co., 128 N.H. 753, 758 (1986);
State v. Murphy, No. 2019-0299 (N.H. August 14, 2020). This is such a case.
Accordingly, the judgment of the superior court is affirmed by an evenly-
divided court.

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., participated.

Timothy A. Gudas,
Clerk

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